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N E W

atjrtligemmt of t]&e %m,

BY MATTHEW BACON,

OF THE MIDDLE TEMPLE, ESQ.

THE SEVENTH EDITION, CORRECTED;

WITH LARGE ADDITIONS, INCLUDING THE LATEST S'tATUTES AND AUTIIOBITIFS.
VOLUM_ES II. III. AND IV. (EXCEPT THE ADDENDA,)

By sir henry GWILLIM,

OF THE MIDDLE TEMPLE, KNIGHT ;
LATE ONE OF THE JUDGES OF HIS MAJESTY'S SUPREME COURT

AT MADRAS. »

VOLUMES I. V. VI. VII. AND VIII. AND THE ADDENDA TO Tilt:
OTHER VOLUMES,

By CHARLES EDWARD DODD,

OF THE INNER TEMPLE, ESQ. BARRISTER AT LAW.

IN EIGHT VOLUMES. ,^5

VOL. L ^\>\.

^\.

LONDON:

PRINTED BY A. STRAHAN,

LAW-PRINTER TO THE KINg's MOST EXCELLENT MAJESTY;

FOR J. AND W. T. CLARKE; LONGMAN, REES, ORME, BROWN, AND GREEN;
T. CADELL; J. RICHARDSON ; J.M.RICHARDSON; R.SCIIOLEY; C. J. G. AND F.

rivington; Baldwin and cradock; w. walker; saunders and benning ;

A. MAXWELL ; S. sweet ; H. BUTTERWORTH ; STEVENS AND SON^ G. WILSON ;

e. Hodgson; r. pheney ; j. richards; e. nunn ; and a. and r. spottiswoode.

1832.

HENRY,
BARON BROUGHAM AND VAUX,

OF BROUGHAM, IN THE COUNTY OF WESTMORLAND,
LORD HIGH CHANCELLOR OF GREAT BRITAIN,

TliriS EDITION

BACON'S ABRIDGEMENT OF THE LAW

IS,

(with his permission,)
most respectfully dedicated by the editor,

CHARLES EDWARD DODD.

Temple, N^wemhcr, 1831.

A 3

PREFACE

THIS SEVENTH EDITION.

The last edition of Bacon's Abridgement was published
in 1807; but that edition was merely a reprint of the
fifth edition, published in 1798. The task, therefore,
devolved on the Editors of the present edition, of in-
corporating into the various titles of the work the
decisions and statutes which, during thirty-three years,
have so materially qualified, confirmed, and reversed
the law as laid down in the last corrected edition.
To the profession, for whom the work is designed,
the extent and labour of this task will in a great de-
gree account for the delay which has occurred in the
publication of the present edition. The second, third,
and fourth volumes were prepared by the former Editor,
Sir Henri/ GwilUm, above ten years since, and were
then printed ; but his ill state of health preventing
his proceeding with the work, the completion of it was
entrusted, several years ago, to the present Editor, who is.
responsible for the first, fifth, sixth, seventh, and eighth
volumes, and for the " Addenda," which it became
indispensable to append to the three volumes printed
by Sir Henry Gwillim. The improvements made by that
gentleman in the edition of 1798, in correcting and
verifying the references, in retrenching repetitions and
redundancies, in expunging unintelligible passages, and

A 4 generally,.

Viii PREFACE TO THIS EDITION".

generally, in purifying and perfecting the text, left
comparatively little to be done by the Editors of this
edition, except (what indeed was of itself difficulty and
toil sufficient) the introduction into the work of the
decisions pronounced by the several courts and of the
statutes enacted since the edition of 1798. In exe-
cuting this task, in the five volumes for which he is
answerable, the present Editor has endeavoured to
adapt the new matter to the old text in the moht
convenient and suitable shape, so that the text and
notes may present a connected and accurate view of
the former state of the law, of the changes it has under-
gone, and of its condition at this day on the various
subjects treated of. Where the new matter introduced
is short, where it forms a concise qualification, confirm-
ation, or contradiction of the old text, it is generally
inserted in the shape of a note, in which form the
Editor has also carefully printed all observations or
inferences not resting on the certain authority of de-
cided cases. Where, however, the additions, whether
of adjudications or statutes, are of considerable extent,
it seemed more convenient to engraft them into the
text of the work than to crowd them into the less
convenient form and the minute type of notes. In all
cases, whether they occur in the body of the work or
in the notes, the additions to this edition are carefully
distinguished by being inserted within these marks |[ ||,
a mark used both by Sir Henry Gwillim in the three
volumes which he edited, and by the present Editor
in the five volumes for which he has stated himself
to be responsible. The marks [ ] distinguish the
additions made by Sir Henry Gwillim in the edition of
1798, and the marks *, t, t, indicate the labours of
former editors.

The Editor has in some instances availed himself of
extracts from Treatises of acknowledged accuracy or

authority

PREFACE TO THIS EDITION. IX

authority on the subjects under consideration. Where
the result of a series of decisions has been concisely
stated by a text writer intimately acquainted with the
particular branch of law, the Editor could not hope to
improve on such an abridgement either in accuracy or
perspicuity. He believes that in all such cases he has
acknowledged the obligation by reference to the author
to whom it is incurred.

It did not fall within the scope of the Editor's duty
to render the work a complete modern abridgement of
the law, desirable and useful as such a work might be
to the profession. He has, therefore, on the one hand,
neither added new titles to the work, nor has he, on
the other, felt at liberty to expunge matter Oh the
ground of its having grown obsolete and useless, or
of its being now only useful to the historical and curious
enquirer. Of this description must be considered a
great part of titles " Appeal," " Papists and Popish
Recusants," " Pr^munire," " Scandalum Magna-
TUM," *' Summons and Severance," " Wager of
Law," " Warranty." The Editor conceived himself
to stand, as to this point, in a very different situation
from the author of an original work.

Though the Editor has introduced no new titles, he
has inserted subdivisions of some of the heads, and has
also, in some instances (as in titles " Agreement,"
"Annuity," "Bankrupt," "Legacies and Devises,"
" Stamps,") occasionally transposed and rearranged
the matter, for the sake of greater perspicuity and
facility of reference. He has been careful, however,
not to confuse his own additions with the previous
text of the book, but has invariably marked, as above
mentioned, whatever rests on no better authority than
his own.

Althougli

X PREFACE TO THIS EDITION.

Although the Editor has endeavoured to consult
l)revity in tlie additions as much as was consistent with
perspicuity, and with the style of dissertation in which
the Abridgement is written, the work has necessarily
been enlarged by the addition of a volume, and by
much increasing the bulk of all the volumes. The
extent of the additions to this edition may be estimated
from the fact, that the cases in the index are about
twice the number of those in the former edition, and
there is an increase of about fifteen hundred pages.

The Editor begs to acknowledge here some very
useful assistance which he received from Mr. Blanshard^
Barrister at Law (now of York,) in preparing the titles
in the fifth volume from " Legacies and Devises "
to " Monopoly," both inclusive.

The Editor cannot send the work forth to the pro-
fession without earnestly bespeaking their candid indul-
gence for its errors, omissions, and imperfections. He
can hardly venture to hope that these are not numerous
in a work so extensive, so difficult, and so multifarious,
which has often exceeded the Editor's powers and has
always tasked his industry, and which has been neces-
sarily completed in the intervals of his professional
avocations as a Special Pleader and a Barrister.

C. E. DODD.

King's Bench Walk, Temple,
Michaelmas Term, 1831.

PREFACE

THE FIFTH EDITION.

It was the hard fate of the excellent writings of the
late Chief Baron Gilbert, to lose their Author, be-
fore they had received his last corrections and improve-
ments, and in that unfinished state to be thrust into the
world, without even the common care of an ordinary
editor. Those invaluable tracts were for the most part
published not only with all their original imperfections,
without any attempt to supply their defects, or explain
or correct what seemed in them perplexed or erroneous ;
but with all the improprieties and inaccuracies which
the ignorance and neglect of the amanuenses, whom
the Author's infirmities compelled him to employ, could
accumulate upon them.

Some of those tracts, it is well known, fell into the
hands of the Compiler of the present work, and from
them the materials of the greater part of it, as far as
the title "Simony," were collected. Unfortunately, our
Compiler had not the most happy dispositions for the
work he had undertaken, nor were those parts of the
learned Judge's writings which appeared in the New
Abridgement much better prepared to meet the public
eye, than the other tracts, which had been published by
persons to whom chance or an undistinguishing choice
had committed the inspection of the press.

Xii PREFACE TO THE FIFTH EDITION.

In the course of the work, Mr. Bacon seems to have
made different use of the materials that lay before him,
sometimes taking the tracts at length, sometimes giving
only extracts from them : but whether he inserted the
whole of any tract, or only a part of it, we have
reason to think, he inserted it just as he found it. If
the Author, in different treatises, in order to make
each treatise perfect within itself, introduced the same
matter conveyed in the same expression, the Com-
piler implicitly copied it, and under different titles of
his work introduced the same passages to the extent of
several pages. If the manuscripts were in any part
defective, if the subjects were but partially treated of
in them*, the titles which related to those subjects were
left equally defective in the Abridgement. The Com-
piler seemed to have as little inclination to supply the
deficiences of his Author, as he had sagacity to mark
or correct his errors.

With these defects and redundancies the work has
passed through three subsequent editions ; the only
anxiety discoverable in the later editors being to crowd
it with reference to cases inapposite to the point in the
text, and which, at the best, had only some relation to
remote branches of the general subject.

In preparing the present Edition for the press, it has
been the first care of the Editor to retrench what was
redundant in the work, and to expunge what appeared
to him impertinent In retrenching, he has substituted
reference for repetition ; and where the same matter
which had occurred under one title seemed naturally to
fall under and belong to another, he has referred to the

* It should seem, from some manuscript treatises of this author in
the possession of Mr. Ilargrave, which have never appeared in print,
tliat lie had formed and actually executed the comprehensive plan
of wriimg distinct treatises upon every branch of the law, except
the criminal jurisprudence.

preceding

PREFACE TO THE FIFTH EDITION. XIU

preceding title, instead of introducing it again. In ex-
punging, he has not indulged himself in any arbitrary
or capricious licence ; nor has he presumed to strike out
one supervenient authority of a later editor, before he
had satisfied himself by careful examination that it had
no pretensions to the place it affected to occupy.

In the original text he has rarely ventured to make
any alteration, except where it was manifestly corrupted
by the carelessness of the copyist or of the press, or
rendered perplexed by the want of due attention to
punctuation. One or two passages, indeed, where the
meaning could not be collected either from the ex-
pression or the references, he thought himself at liberty
to expunge. Conjectural emendation is not admissible
in a work of this kind ; and he trusts no man will com-
plain of the loss of nonsense.

He has attempted to mark, and guard his readers
against, the mistakes of the author : but he is sensible
that many, too many, erroneous passages have been
suffered to pass without observation. In the course of
so long a work, it cannot be expected that the exertions
of the mind should be always equal, or that it should
always be alike disposed to proceed in the task it had
undertaken. It must occasionally sicken at some parts
of the labour as beneath its attention, and shrink fi-om
others as beyond its powers. It is well known that the
most obvious errors sometimes most easily escape de-
tection. In reading, every man must have felt that his
mind is sometimes more attentive to its own precon-
ceptions on the subject, than to the ideas of the author j
and the better it is satisfied with the rectitude of the
former, the more steadily it pursues them, and the less
sensible it is of the aberrations of the latter. The
form, too, in which error presents itself to us, may help
to facilitate its escape : it is more likely to pass silently
and unobserved when proposed in the form of a simple

affirmation,

xiV PREFACE TO THE FIFTH EDITION.

affirmation, than when it challenges our enquiry in that
of an interrogation. We often readily admit upon a
statement what we should instantly deny, if it were
offered to us in the way of question.

It should be observed, that, even where the Editor
has detected error, he has not always immediately
apprised his reader of it : he has sometimes subjoined
his remarks upon the erroneous passage at the end of
the division where it has occurred: he has at other
times left its confutation to its inconsistency with the
better-considered and more recent determinations which
he has afterwards introduced.

In the additions he was to make, he found it necessary
to prescribe to himself some limitations : he therefore
in general attempted no more than to fill up the chasms
that were left under those general divisions into which
lie found the work already disposed, and then to engraft
upon the whole the later decisions. He has indeed given
two new titles, viz. " Pischary," and " Set-off ; " and
he knows that he might have given others, as the work is
at present far from a complete abridgement of the law.
But he had neither time nor encouragement to go far-
ther. Besides, much of the learning which is wanting,
is to be met with in books that are in every one's hand:
and what was to have been gleaned from other writings
of the same kind, though it might have increased the
bulk of the work, would not have added to its intrinsic
value, or have done any credit to the industry or in-
tegrity of the Editor. If there should be some who
complain that more might have been done, there will
be others, he fears, who will say, perhaps with more
justice, that much of that which has been done might
have been spared.

As the Abridgement is written in the style of dissert-
ation, he has in his additions availed himself largely of

those

PREFACE TO THE FIFTH EDITION. XV

those tracts which have been pubHshed upon different
parts of the law, and received the approbation of the
profession. He has been in general careful, whenever
he has made an extract from any of those tracts, to
acknowledge the obligation by reference to the work
itself. If he has in any instance (and he may have done
so in many) neglected to make such reference, the
author may be assured that it was by mere accident or
inadvertency, and not from any design to take to him-
self the credit of another man's labours. But wherever
such omission may have been made, let not the author
be under any uneasiness : the world will too easily
distinguish what properly belongs to the Editor.

He thought himself at full liberty to transplant into
the work as much of the Chief Baron Gilberts tracts
as he had occasion for : it was in truth only re-uniting
disjointed members, many parts of the work itself being
only parts of several of those tracts. One of the learned
Judge's treatises, viz. the Treatise upon the Doctrine of
Remainders, from which the collections in the Abridge-
ment under that title were extracted, he has been enabled
to give entire by the kindness of Mr. Hargrave. The
manuscript had been purchased by that gentleman at no
inconsiderable price ; but, disdaining all private con-
siderations where the interests of that profession, of
which he is so distinguished an ornament, seemed in
any degree concerned, he made a voluntary tender of

to the Editor, as soon as he was informed that he
was engaged in preparing another edition of the present
work. By this generous act, Mr. Hargrave has highly
flattered the Editor, and has added one more to the
many obligations his profession were already under
to him.

The Editor has been anxious to separate his own
additions, and those of preceding editors, from the
original work. Whatever, therefore, he is responsible

for.

XVi PREFACE TO THE FIFTH EDITION.

for, is included between crotchets, thus [ ] ; whilst the
insertions of the other editors are distinguished by one
or other of these marks, *, t, t. It is well known
that Mr. Bacon did not live to carry the work any
farther than to the title *• Sheriff," inclusive, and that
the remainder was added by Mr. Serjeant Sayer and
Mr. Rujfhead. It was not thought necessary to give
any distinguishing marks to this latter part : it seemed
sufficient to give this intimation of it.

HENRY GWILLIM.

Boswell-Court,
Michaelmas Term, 1 797.

ABATEMENT.

ABATEMENT, in the general acceptation of the word, Gilb. Hist,
signifies a plea put in by the defendant, in which he shews fpor'the^Jeri-
cause to the court why he should not be empleaded ; or, if yation and dif-
empleaded, not in the manner and form he now is. ferent senses

of the word
Abatement in our law, see sBl. Comm. 168. Co. Litt. 134. b. 181. a. 242. b. 271. a. 277. a.
Finch's Law, 195. Pleas to the jurisdiction, and to the person of the plaintiffj are pleas in
disability, and only in the nature of pleas in abatement. Pleas in abatement, strictly such, are
pleas to the writ. Finch's Law, 362. 3 Black. Comm. 301.] For the order of pleading, see
title Pleas and Pleadings, (A).

We will consider this title in the following order, though
several of its divisions are more largely treated of under their
proper heads.

(A) Of Pleas to the Jurisdiction of the Court.

(B) To the Person of the Plaintiff.

1. Outlaw?!/.

2. Excommunication.
S. Alienage.

4. Premunire.

5. Popish Recusancy.
II 6. Coverture.^

(D) Of Misnomer and want of Addition.

(E) Of Abatement by the Demise of the King.

(F) By the Death of Parties.

(G) By reason of Coverture.
(H) By a Defect in the Writ.

(I) By the Writ's not agreeing with the Count.

Vol. I. B (K) Where

ABATEMENT.

(K) Where the Writ is abated de Facto, or only
abateable.

(L) Where the Writ shall abate in toto, or in Part.

(M) Where it shall abate by Reason of another Action
brought for the same Thing.

(N) Where a Person may plead in Bar, or in Abate-
ment.

[(O) Dilatory Pleas, how restrained.]

(P) Of the Manner of pleading in Abatement, and
the Proceedings and Judgment on such Plea.

[(Q) Of the Writ by Journies Accompts.]

(R) Foreign Plea.

(A) Of Pleas to the Jurisdiction of the Court.

Gilb. Hist. A PLEA to the jurisdiction of the Court must be put in be-

^•^- '^"^' fore (a) any imparlance, for by craving leave to imparl, the

7 Barnes defendant submits to the jurisdiction.

334. [(a) But after a general special imparlance, that is, an imparlance with a general saving
of all manner of exceptions, it seems that it may be pleaded : but the granting of such an im-

Cirlance is discretionary in the court, and it cannot be had but by special motion. Grant v.
ord Sondes, 2 Black. R. 1094. Wentworth v. Squib, 1 Lutw. 46. 12 Mod. 529. S. C. Clap-
ham V. Lenthal, Hardr. 365. Barrington v. Venables, Raym. 34.] ||And if the defendant
plead such a plea after a special imparlance, with a saving only of all exceptions to the writ,&c.
though the plea is demurrable it is not a nullity. Godefroy v. Jay, 6 Bing. 616.11

The defendant must plead in propria perso?id, for he cannot

plead by attorney without leave of the Court first had, which

leave acknowledges the jurisdiction; for the attorney is an officer

of the Court ; and if defendant puts in a plea by an officer of the

Court, that plea must be supposed to be put in by leave of the

Court.

Co. Litt. 127. He must make but half defence; for if he makes full defence

Gilb, Hist. mtando et vhi curia consideraveriL &c. he submits to the iurisdic-
C. P. 188. See ;:. c ^\ r> .. J ^

Ventr.354. tion of the Court.

Alexander v. ijBut a plea which goes no farther than " defending the force

Mawman, and injury when, Src." is not a full defence, the " 4"^" implying a

w'ilk * ^ ^° ^"^^ ^^ * ^^^ defence according as the one or the other is re>

VVilIi?mI', quisite.ll

8 Term R. 63 1. ; and 3 Bos. & Pull. 9. (a) ,

Doctr. PI. 224. Every plea to the jurisdiction must state another jurisdiction.

Fabrigas, Cowp. 172. Earl of Derby v. Duke of Athol, 1 Ves. 203. 2Ves.357. Rex v.
Johnson, 6 East, 585.

Attorney Ge- [A plea that the suit is of visitatorial cognizance, must shew

the

(B) To the Person of the Plaintiff. S

the extent of the visitor's authority, and aver that he is able to neral v. Tal-
do complete justice.] ^Atk.IS.

S. C. Green v. Rutherforth, 1 Ves. 474. and Rex v. Bland, B. R. Mich. 14 G. 2. there cited.

See tit. Courts, and their Jurisdiction in general.

(B) To the Person of the Plaintifil

1. Of Outlawry,

/^UTLAWRY in the plaintiff is a good plea in abatement, Gilb. Hist.
for he thereby loses his liberam legem, and is out of the pro- C. P. I96,
tection of the law; for not having been amenable to the law, he Jq!* ^ l^m*
ought not to have any privilege or benefit from ^t. 12.' But no '

man shall be said to be outlawed till the return of the exigent. Bro. Nonability, 25. 28.
Ass. 49. Dyer, 222.

But outlawry does not entirely abate the writ, but is only a Co. Litt. 128.
temporary impediment that disables the plaintiff from proceed- q°j ^-^^ q^
ing ; for upon obtaining a charter of pardon, or reversing the 97. *
outlawry, he is restored to his law, and can oblige the defendant
to plead to the same writ.

Outlawry in a personal action goes only to personal actions, in Doctr. PL 597.
respect of the person ; but outlawry in felony goes to actions ge- *^^^^^ ^^ ^'
nerally.

See further tit. Outlawry (D), 3. 2. 3.

II And as to pleading outlawry in equity, see ibid, and 1 Sim.
& Stu. 225. 720. 1 Ves.& B. 184. 1 Vern.l84.||

2. Excommunication.
See tit. Excommunication (C), (D).

3. Alienage.
See tit. Aliens (D), (E).

4. Premunire.
Persons attainted of a premunire are incapable of bringing Gilb. Hist,
any action, for they are out of the protection of the law. ^- V; ^2,^*

See tit. Premunire. Co. Litt. 129.

5. Popish Recusancy.

This disability of popish recusancy convict is by virtue of the ^ p*H!f'*

statute 3 Jac. c. 5. which disables to all intents, ^c. except where l j Ray^,

the party sues for lands, tenements, leases, annuities, rents, and 245. 5 Lev.

hereditaments, or the issues or pi'ofits thereof, which are not 308. 8 Mod.

to be seised into the hands of the kinff, his heirs or successors. ^\ \^'^' ^

o' li.ntr. 19. bee

18G.3. C. 60. 31G.3. C.32. 43G.3. C.30.

See tit. Popish Recusancy.

1)6. Coverture. Seepos/.H

B 2 (C) Of

4 ABATEMENT.

2 Mod. 297. 'T^HE officers of each court enjoy the privilege of being sued
Vaug. 155. J- jjj^jy jj^ those courts to which they respectively belong; the
2 Roll. Abr. reason whereof is, because of the duty they are under of attend-
272. Lut. 44. ing those courts, and lest their clients* causes should suffer if
639. 2 Inst, they were drawn to answer to actions in other courts.

551. 4 Inst.

71,72. Crom- Jur. Courts, 11. Gilb. Hist. C.P. 209. 212. What persons are privileged,
vide head of Privilege, Vol. VI., and for precedents of pleas of privilege, vide Thomp. 4. Rob.
Ent. 199. Rast. Ent. 106. 178. 472. Brownl. 161. 167. 168. Hern. 3. 3 Inst. Clericalis,

32 35. "Where they are not obliged to put in special bail ; and where bail must be put in

when they sue, vide head of Bail in Civil Causes. ||As to pleas to the person of the defendant
in courts of equity, see Beames's Plead. Eq. 129., &c.||

Lutvir. 44. 639. [Whenever therefore an attorney is sued out of his own court,

Bro. Traverse, jjg jj^^y say that he is attorney, Sf-c. of another court, and conclude

with wide non intendii qicod cur,, 8^c. hie placit. jn-cedict. versus cum

cognoscae velit aut debeat, Sfc. But the plaintiff may reply that

he is a husbandman, Src. in the country, and traverse his being

an attorney.

o Wils 42. ^^^ privilege is not the privilege of the officers, but of the

228. 1 Sir. suitors ; and attendance being the ground and foundation of

546. 4 Bur. it, it must be alleged that the officers are actually attendant

2109. Andr. jj^ their respective courts, otherwise the plea will not be al-

45. 1 Bos. & 1 1 -, ^ ^

P«1.4. llSee Jowed.]

head Privilege (B), Vol. VI.||

Saund. 67, 68. But the plaintiff must have the same remedy against the officer

r^Mv^'H^ ^^^ *" ^^^ ^^^ court, as in that where he sues him ; for if money be

Q p 209 attached by foreign attachment in the sheriff's court of London,

210. Co7i/r. <^he officer shall not have his privilege; because in that case the

Lodge's case, plaintiff would be remediless.

2 Leon. 156.

Dy. 217. a. Watkins v. Hews, 1 Sid. 362. ; [and vide Ridge v. Hardcastle, s Term R. 417. acc^

Saund. 97. So, if a writ of entry, or other real action, be brought against

r P Qi n' Sn ^" attorney of the King's Bench, he cannot plead his privilege ;
if an attorney* because if this should be allowed, the plaintiff would have a right
of the Com- without a remedy ; for the King's Bench hath not cognizance of
mon Pleas be real actions,
sued in an ap-
peal, he shall not have his privilege ; for his own court hath no cognizance of this action ;
nor if sued as baU. Rep. & Cas. Pract. C. P. 64. Gilb. Hist. C. P. 210.

Gardner v. [The jurisdiction of the court of conscience for Westminster ex-

4^°?V?ltshire ^^"^^ '° attorn ies; but not that of the county comt oi Middlesex,
V. Lloyd, o'' of the London court of conscience ; and a defendant who re-

Dougl. 581. sides within the jurisdiction of this last court is not entitled to
?"d *^^ liw. ^^^^ benefit of the statute of 23 G. 2. c. 33., if the plaintiff is an
Board v. Par- attorney (a), unless the plaintiff wave his privilege by declaring
ker, 7 East, as a common person.]

35. Vid. conlr. Silk v. Kennet, 3 Burr. 1583. and 382. notes, (a) Tagg v. Madan, 1 Bos. &
Pull. 629. Pivrker v. Vaughan, 2 Bos. & Pull. 29.

The

The privileges which the courts indulge their officers with, is Hob. 177.
restrained so those suits only which they bring, or which are ^^ \{^^
brought against them in their own right; for if they sue or are c. P. 211.
sued as executors or administrators, they then represent common 2 Roll. Abr.
persons, and are to have no privilege. U^- P^-^s*

17Vin. Abr. 517. pl.2. Vent. 299. Godb. 10. pi. 13. Dy. 577. pi. 30. Latch. 199. Brownl
3V. 47. 12Mod.516. Ld.Raym. 533. Salk. 2. pl.4. 7. pi. 18. 2 Sid. 157. Dy. 24. 150. in
marg. Sav, 20. pi. 49.

So, if an officer of one court sue an officer of another court, Gilb. Hist,
the defendant shall not have his privilege; for the attendance of q^^^qI'
the plaintiff is as necessary in his court, as that of the defendant pi 95,
in his : and therefore the cause is legally attached in the court Brownl. 37.

where the plaintiff is an officer, (a) [2 Black. R.

^ ^ ' 1325. ||See

9 Price, 16.11 (^) If^ privilege be pleaded to privilege, the court will not determine it on
motion to set aside the plea, but oblige the party to demur. 2 Str. 857. 1 Bl. Rep. 34.] ||And,
where one attorney sued another of the same court by attachment of privilege and held him to
bail, the Court of K. B. stayed the proceedings upon motion. However, considering this mode
of application as a substitute for a plea in abatement, they did so without costs. Barber v.
Palmer, 6 Term R. 524. Nicholls v. Earie, 8 Term R. 895.||

So, if a privileged person bring a joint action, or, if an action q\\\,^ Hist,
be brought against him and others (i), he shall not have his pri- 212. Dyer,
vilege : but this is to be understood where the action is joint, and ^77. p. 30.
cannot be severed ; for if the action can he severed, without 2 Roll Abr
doing any injury, the officer shall have his privilege. Qu. 275. 2 Lev!

129. Vent. 298, 299. j|See Robarts v. Mason, 1 Taunt. 254. {b) But an attorney sued
jointly with a person having privilege of parliament, does not lose his privilege. Ramsbottom
v. Harcourt, 4 Maul. & S. 585.1|

[So in equity, if a suit be instituted against different persons, Mit. Eq.
some of whom have privilege, and some not (c), or, if one de- ^l* ^ ^f/
fendant be not amenable to the particular jurisdiction, the plea Univerntu
of privilege will not be allowed.] (K), p. 3.

An officer shall not have his privilege against the king {d) ; for Fortesc. 342.
as the executive power is lodged in the king, it would be unrea- j"', g^o'n
sonable that his court, which gives relief to private persons, should ^^J. 274.
protect any subject from being brought to justice for offending Gilb. Hist.

against the laws, which concern the whole commonwealth. C. P. 208.

°_ {d) But man

action qui tarn at the suit of an informer, he shall have his privilege. Lil. Reg. 7. 3 Lev. 598.
Lutw. 193.

If an attorney of the Common Pleas be in custodia maresch. for , ^ n * -eu^
/• I -1 1 • f ^ 1 111- • •! / \ (^) But II he

want 01 bail at the suit 01 A.^ he may plead his privilege, {e) i,e in cusiodid

"mareschal, at the suit of A., and B. declare against him in cmtodid viarcschal. if he has
waved his privilege as to A., he cannot take advantage of it against B. For this vide 2 Roll.
Abr. 275. pi. 7. Salk. 1 pi. 3. 5 Mod. 3ip. sLev. 345. Ld. Raym. 135. {[l Stra. 191. 4 Barn.
& A. 88.||

After a general imparlance, an officer cannot plead his privi- Bro. Priv. 25.

lege [g)y because by imparling he affirms the jurisdiction of the S2 H.6, 7

court ; but by the better opinion it seems, that after a special im- u"^" P" ,
1 ,•' 11I--.1 /j\ ^ Hard. 565.

parlance he may plead his privilege, [h] Lutw. 46.

Salk. 1. Str. 522. ||(g) If a plea in abatement be pleaded after a general imparlance, tiie plain-
tiff may either demur to it generally, or treat it as a nullity, and sign judgment as for want of

B 3 a plea.

^ ABATEMENT.

a plea. Duddle v. WUson, 6 Term R. 369. Doughty v. Lascelles, 4 Term R. 520. But if
the bill is filed in vacation entitled of the preceding term, the defendant may plead in abatement
within the first four days of the next term. Holme v. Daiby, 5 Barn. & A. 259. 1 Chitt. R.
704.; and see 2 Will. Saund. 2. no^d. (5th edit.)|| (A) [By a special imparlance, in this
case, must be understood a special general imparlance. Vide tupra (A), notes.] Plea of
privilege without affidavit set aside. 2 Str.738. ||See Tidd. 640. (9th edit.), and /?04/.(P).||
It must be pleaded, it cannot be allowed on motion. 2 Salk. 544. 1 Wils. 306.] \^Sed vide
xuprk Barber v. Palmer, 6 Term R. 524. ; and Tidd's Prac. 81. (t)th edit.)|l

s Black. R. [An attorney who is arrested by capias on a special original

'°Sh ^^^^^^^ out of the same court, is not entitled to his discharge on serving

the sheriff with a writ of privilege, but must plead the privilege

in abatement.
Comerford jjg n^^y plead it as well to an action on a bill of exchange, as

Doucl 312. ^^ ^"y other personal action.

Fortesc. 343, An attorney has not any privilege to be sued in Middlesex
2027 * ^^^' **"^y * ^^ ^^ enough that he be sued in his own court]
Salk. 1. pi. 2. In an action against B. he pleaded quod ipse est unus attomat.
Peaso V. Par- ^^^ domi?ii regis de B. without saying fuit tempore impetrationis
lece should be ^'"^'^ (^) * ^"^ ^ respondeat ouster was awarded,
pleaded — provi patet per recordam. Ibid. \\{a) The privilege attaches only upon prac-
tising attornies. See the ride of Court of 1654. It is founded upon a presumption that the
attorney is already in court attending his duty, so that the issuing of process merely to bring
him there would be nugatory. But this reason does not apply to an attorney who is not prac-
tising at the time. Brooke v Bryant, 7 Term R. 25. Dyson v. Birch, 1 Bos. & Pull. 4. ; and
see S Maul. & S. 605.||

Stokes V. II The courts will take notice of the privileges of their officers,

™"'"» so far as to support a plea, notwithstanding little informalities or

' ' want of precision, provided enough appear in it to shew that the
defendant is entitled to privilege.
(h) 1 Lut*r. Under tlie head of Pleas in Abatement to the person of the

23. 5 Inst. defendant, may also be included coverture in the defendant (6),
(c) i Inst CI °^ ^^^ ^^ plaintiffs or defendants, suing or being sued as hus-
69. (d) Id. 51. band and wife, are not married (c), or any other plea for want of
Rastal.325.a. proper parties, as that there is an executor (rf), administrator {e),
(<?) 3 Inst. CI. or other person (h) not named.
53. Rastal, r v /

824. (g) 3 Inst- CI. 53. 119. 1 Lutw. 696. ; and see 1 East, 634.

{h) 2 Will. If an action be brought for a tort by one of several joint
i^e" 1 Ve\ tenants or tenants in common, the defendant must plead the non-
167! 1 Ld. joinder of the others in abatement, or he cannot take advantage of
Raym. 127. the objection. (Ji)

S Wils. 414.

. , And so also, if an action on a contract is brought against one

5 Burr. 2611. ^^ several joint contractors, the defendant can only take advan-
2 Black. R. tage of the nonjoinder by plea in abatement, {i)
»47. 5 Term R.649. 1 Will. Saund. 291. c. d. (5th edit.)

*) Moo. & The defendant cannot, however, plead a secret partnership in

^alk. 88. abatement, {k)
\ Stark. Ca. 338. 5 /J. 8. ; ted vide contrh, 5 Taunt. 609. 1 Marsh. 246.

If an action be brought against a carrier in case for not safely

carrying

(D) Of Misnomer, and want of Addition, 7

carrying goods, the defendant may plead in abatement that his / v ^p p
partners ought also to have been sued, (a) ggg 2 New

R. 565. ; but see 5 Term R. 649. 2Chitt. R. 1. 6M00. 141. 3Brod.&B.54. 2Marsh.485.;
from which it seems that if the action on the case is grounded on the custom of the realm, it
is otherwise; and see 1 Will. Saund. 291. e. (5th edit.)

If an action of debt be brought on the stat. 9 Ann. c. 14. to
recover back money won at play, the defendant may plead in
abatement that the money was due from others not named as well (i) 7 Terra R.
as himself, {b) 257.

In these cases, the defendant, if required, must deliver to the i<^) ^ Bam. &
plaintiff the places of abode, and additions of the parties jointly i^Younce
liable, or the Court of King's Bench will set aside the plea, (c) ^ j 257.

In an action on the case against a common carrier, for not (d) 2 Chitt.
safely carrying a passenger, the defendant cannot plead in abate- ^- ^•' ^^ '®®
ment the nonjoinder of a co-proprietor. (d)\\ g^g g j^^^^^

141. 5Brod.&B. 54, 9Price,408.
See further tit. Attorney and Privilege.

(D) Of Misnomer, and want of Addition.

J^ISNOMER is a good plea in abatement ; for since names [(<?) It is'plead-

are the only marks and indicia which human kind can ^^^^ only in
understand each other by, if the name be omitted or mistaken, ^ 31^^^^'
there is a complaint against nobody, [e) 1120.] j|That

is where the process is not bailable. 7 Dow. & Ry. 258. Tidd, 44ff. (9th edit.) But if the
defendant has been arrested by a wrong name, the court will set aside the proceedings.
1 Marsh. 477. 4 Maule & S. 360. 1 Chitt. R. 282. ; sed vide 4 Barn. & C. 970. 3 Bing.
296.; and discharge him if in custody. 2 Taunt. 399. 4 Maule & S.560. ; but see 1 Price,
277. 391. 2 Price, 328. Tidd, 447. (9th edit.)])

But, though a defendant may, by pleading in abatement, take Finch. 565.
advantage of a misnomer when there is a mistake in the writ or wh '^'e^K^h" '
declaration, as to the name of baptism or surname ; yet in such appearing by
a plea he must set forth his right name, so as to give the plaintiff that name, or
a better writ, {g) not taking ad-

vantage of it,
such mistake will be aided, vide tit. Error. Vide Yelv. 112. ||Tidd,447. 637. (9th edit.)||
Must, in setting forth his name, say, that by such name he was known at the time of the writ
purchased. Skin. 620. pi. 17. Vide Salk. 7- pi. 17. Goulds. 86. (g) So, if he plead a mis-
take in the addition, he must set forth his right addition. 2 Stra. 816. 10 Mod. 208.
2Ld. Raym. 1178. 1541.]

One defendant cannot plead misnomer of his companion ; for Lutw. 36.
the other defendant may admit himself to be the person in the
writ.

The defendant, though his name be mistaken, is not obliged ^^f^* ^^^^*
to take advantage of it ; and therefore if he be enipleaded by a pretended^**"
wrong name, and afterwards empleaded by his right name, he himself to be
may plead in bar the former judgment, and aver that he is una Earl of Buck-
et cadcm persona. ingham, was

arrested by
the name of J. Villafs, armiger ; and on motion, the court gave him leave to put in bail, with-
out joining in the recognizance, and thereby not estop himself. Vide Salk. 5. [)1. 7. Ld. Raym,
64.249. 7 Mod. 58. Stra. 205. 2 Stra. 811. Ijlf a party make a bond by the name of j4. jff.,
of C. in the county of D., and in an original writ on the bond he is described accordingly,
and is outlawed, he cannot reverse the outlawry on the ground that he was not conversant
in C. in the county of Z)., and that there is no such place, for he is estopped by his bond.
Bonner v. Wilkinson, 5 Barn. & A. 682.j|

B 4 In

8 ABATEMENT.

rw» Cro. In case of felony at common law, if a person were indicted by

Can 104. a wrong name, he could not plead mistwmer, but was obliged to

« in»t*67o * p^^°^ '" ^^^ ^^^""y 5 ^°^ ^^^ ^"^' ^^^"^ ^^°'*" *^g^^"^^ *^^ p^^'y

Sid. 4a Lite, present, it was thought that there could be no injury by the mis-
R. 1. rtde nomeTi as there might be, where the party appeared by attorney ;
head of J^ and felons generally co by no certain name, nor have they any
nomer and n j i i •." • °

^daWan, and fixed habitation.

9 Hawk. P.C. 186, 187.; that the party accused may take advantage of misnomer, or the want
of additioH, bat yet must plead over to the felony ; but though such plea be found for him, he
is not to be discharged, but must be indicted over again: neither shall such plea, if found
against him, be peremptory, but he shall be tried on his plea in chief. |jBy 7 G. 4. c. 64. § 19.
no indictment or information shall be abated by reason oC any dilatory plea of misnomer, or of
want of addition or wrong addition, if the court shall be satisfied by affidavit of the truth of
Buch plea ; but the court shall amend the indictment, &c. and call on the party to plead
thercto.|]

|]A plea of this But it is now necessary to set forth the state, place of abode*
statute, and ^jj^ dignity of the person empleaded, lest an innocent person*
tion had been ^y hi''^ving the same name with the real defendant, should
given to the suffer ; therefore the 1 H. 5. c. 5. enacts, That in all personal ac-
defendant tions, appeals, and indictments there shall be added to the
cither in the names of the defendants their estates, degrees, mystery, and place
writ or in the ©* abode.

subsequent part of the declaration, was considered as a nullity by the Court of C. P. and the
plaintiff haa leave to sign judgment. Gray v. Sidneff, 3 Bos. & Pull. 595. Murray v. Hub-
l>art, 1 Bos. & Pull. 645. Or he might have moved to quash it. Wallace.v. Duchess of Cum-
berland, 4TermR.371. Deshons v. Head, 7East,385.; and see 2 New R. 188. 4 Taunt.
668.||

(a) Mistakes Additions (a), which are inducements to the action, must be

in such addi- ^^de Use of; as, if one is liable as heir, he must be named heir:

tions are good .^ • , i ,

objections in ^°» ^* ^^ executor, he must be named such.

abatement both at law and in equity. Rast. 324. llH. 7. 11. Mitf. Eq. PI. 192. Pr.

R^278. ^ ^

See further tit. Misnomer and Addition, (E) (F).

(E) Of Abatement by the Demise of the King.

Proceedings A T common law all patents of justices, commissions civil and

^?i^ •"*t""" military, were determined by the death of the king ; and

ation, m na- n -^ j j- • i i • i "^ t- • i i

ture of a ouo ^11 suits depending m the kmg^s courts were discontinued, so that

warranto, are the plaintiffs were obliged to commence new actions, or to have

not abated by re-summons or attachment on the former processes, to bring the

the crowru ° defendants in ; but to prevent the inconvenience, expense, and

2 Stra. 782. delay, which this occasioned, were the statutes of 1 E. 6. cap. 7.

\\ here the 7 & 8 W. S. cap. 27. § 21. and I Ann. st. 1. cap. 8. § 5. made,

king brings a which vide under title Courts, and their Jurisdiction in

wnt of error GENERAL, (C).
in guare wipe- —> \ /

dit, it abates by his death. 2 Stra. 837. Fort. 213. Fitzgib. 35, 36. Scire facias to repeal a
grant of a market, is an original writ, and within the general words of the statute 1 E. 6.
c. 7. and I Ann. c. 8. and does not abate. Stra. 43. ||By 11 G. 4. and 1 W. 4. c. 45. § 4. all
commissions for taking affidavits in any court, and for taking recognizances of bail shall,
notwithstanding the demise of the crow-n, remain in force during the pleasure of the suc-
ceseor.U

(F) Of

(F) Of Abaiement by tJie Death of Parlies.
(F) Of Abatement by the Death of Parties.

TJERE the general rule to be observed is (a), that wherever 5 Mod. 249.
the death of any party happens pending the writ, and yet the 2 Vent. 196.
plea is in the same condition as if such party were living, there [„ ^^Qu^tof
such death makes no alteration ; for, where the death of the equity in this
parties makes no change of proceedings, it would be unreasonable respect, is
that the surviving parties should make any alteration in the writ ; similar to that
for if such writ and process were changed, it would set rights but ^^"^[j [^ ^^^_
in the same condition they were in at the death of the parties ; and ^^i ^t jaw. If
it would be absurd that what made no alteration should change the interest of

the writ and the process : and on this rule all the diversities turn. » par'y dying

so determines
that it can no longer affect the suit, and no person becomes entitled thereupon to the same
interest, the suit does not abate. Or, if the interest of a party dying survives to another
party ; as, if a bill is filed by or against trustees or executors, and one dies ; or by and against
husband and wife in right of the wife,' and the husband dies, the proceedings do not abate.
So, if a surviving party can sustain the suit, as in the case of several creditors plaintiffs on
behalf of themselves and other creditors. For the persons remaining before the court in all
these cases, either have in them the whole interest in the matter in litigation, or at least are
competent to call upon the court for its decree. Mitf. Eq. PI. 56. 5 Chan. R. 40. 2 Vern.
249. 3 Atk. 726.] JlWhere husband and wife were defendants to a bill praying an assignment
of a term, which the wife by her answer claimed to hold to preserve her dower on the death
of the husband, Lord Eldon inclined to think the suit might proceed without a supplemental
bill. 1 Jac. \\. 495, Where a married woman by her next friend was plaintiff, and the next
friend died, she was ordered to name a new one within two months, or the bill to be dismissed
with costs out of the fund in court. Barlee v. Barlee, 1 Sim. & Stu. 100. The death of one
defendant does not necessarily prevent judgment. Davies v. Davies, 9 Ves. 461. A suit by a
corporation does not become defective by death of some of the members, aliter of a suit by
the members in their individual character. Blackburn v. Jepson, sSwanst. 138.; see 1 Jac.
R. 73. 1 Russell, 51 7.||

The first difference is in real actions; where there are several Cro.Eliz. 982.
plaintiffs, and there is summons and severance, as there is in most ^ ' i*** ^^^'
real actions, there the death of one of the parties abates the writ; 10 Cc 134.
but in personal and mixed actions, (where one entire thing is to be Jon. 452. 6 Co.
recovered,) there \he. death of the parties does not abate the writ; 26.
and the reason of the difference is, that where there are two joint
tenants, and the one goes on to recover his moiety, and the other
will not proceed, there is no reason that he who is willing should
not recover his right, since such tenant has a distinct moiety, and
therefore should have an action to recover. But no summons or
severance lies in personal actions, as, if trespass be committed on
such joint tenants, they must both join in the action ; for as one
may release the whole, so the other may refuse to go on, and his
companion cannot recover his parf of the damage without him :
so, in debt on an obligation to two there can be no summons and
severance, because one of the joint obligees may release the bond :
but, if a man appoints two his executors, there shall be summons
and severance, because one of the executors may release ; yet
such a release is a devastavit in him ; but, if he will not proceed at
law, it is no devastavit ,• and therefore both executors l)eing only
trustees for the person deceased, they shall not be compelled to go
on together: but if one refuses, the other may bring his action in
the name of both, and have summons and severance ; for other-
wise

ABATEMENT.

Co. Lit. 159.

Cro.EHz.652
Leon. 44.

Co. Lit. 139.

Dyer. 279.

10 Co. 134.
Co. Lit. 139.
(a) But shall
abate in a set.
/a, being an
original writ.
Brownl. 64.
but not upon
a urrit of en- ',
quirt/. Leon.
30 U. 6. 30.

wise each executor might by collision with the debtor, and not
proceeding, keep the other from recovering the assets, and yet
not create a devastavit in himself. But after such summons and
severance he does not proceed for the moieties as in real actions,
but he proceeds as the sole representative of the testator, and is
entitled to the whole the testator was in his lifetime.

From these premises it follows, that if there be two joint-
tenants or copartners, and they bring a real action, and one be
summoned and severed, the other shall proceed for his moiety j
and if the person severed die, the writ abates, because he goes for
the whole, in case of the death of the joint-tenant, or of the co-
partner without issue ; and it would be improper to do it on that
writ, where by the summons and severance he went only for a
moiety before; and the writ cannot have a double effect, for a
moiety in case of summons and severance, and for the whole
in case of survivorship ; and therefore since the nature of things
is changed by the death of one of the parties, there must be an-
other writ. And it is the same law, if such joint- tenants proceed
without summons or severance ; for since both by the writ might
by possibility recover their moieties, they shall not go on for the
whole in case of survivorship ; because the words and effect of
the writ at the time of its first purchasing were, that each might
recover his moiety; and therefore a new writ must be purchased
to enable one to proceed for the whole : but in personal and
mixed actions, where there is summons and severance, and yet
after such summons and severance the plaintiff goes on for the
whole, tkeref if one of them die, the writ shall not abate, be-
cause he goes on for the whole after summons and severance ;
and if he were to have a new writ, it would only give the court
authority to go on for the whole.

Therefore, if there are two executors, and they bring an
action of debt, and one of them is summoned and severed, or
not, and such severed person dies, yet the writ shall not abate.

So, if two joint-tenants bring a writ of ward, and they are
summoned and severed, and the severed person dies, the writ
shall not abate ; because after such severance he went on for the
whole, and so he does after the death.

So, in a gttare impedit by two joint- tenants, and one summoned
and severed ; if the severed person die, the writ shall not abate j
because the adowson is an entire thing, and the survivor pro-
ceeded for the whole after the severance, and so he may after
the death.

In judicial writs, the suit shall not abate by death, if the
person surviving be entitled to the whole (a) ; as if a fine be levied
by two coparceners, and one of them die without issue, proceed-
ings shall go on for the other, because he is entitled to the
whole by survivorship ; but if the other coparcener have issue,
then the writ shall abate, for the survivor is only entitled to a
moiety ; for there is no summons and severance in judicial writs.
26J.

But if there be several persons named as plaintiffs in the writ,

and

(F) Of Abatement hy the Death of Parties. 11

and one of them was dead at the time of purchasing the writ, isB. 4. i.
this may be pleaded in abatement; because it falsifies the writ, „. ^%^^* .
and because the right was in the survivors at the time of suing Qiif^'g Ent. 6.
the writ, and the writ not accommodated, as the case then was. Rast.Ent.i26.

But if an erroneous judgment be given against two, either 26 Ass. p. 25.
of them may bring a writ of error, and he may summon and Bro. Summ. &
sever the other; for it would be unreasonable that the one Sev. 19.
should not discharge himself of an erroneous judgment, because
the other will not intermeddle ; and default of one in a personal
action shall not prejudice the other.

If there be several defendants in the original action, and one Cro. Car. 426.
die, the writ does not abate, because there being a joint de- •^°"' ^*J* ^*^*^'
mand, it survives against the residue; but if one happen to 7-,' ,^,
die pending the writ, there must be a suggestion on the roll, 1 Show. 1 86.
because it would be error to give judgment against a dead
person.

In a writ of error, if there be several plaintiffs, and one die, Yelv. 208.212

the writ shall abate; because the writ of error is to set persons 213. Ventr.

in statu quo before the erroneous judgment was given ; and the ^f- contra

plaintiffs in error are distinct sufferers in the judgment, since ro V^^^'p

there might be different executions issued thereupon, and differ- noyerv. Brace

ent liens made by such judgment on the lands of each of them ; Ld. Raym.

and, by consequence, the survivor cannot prosecute the writ ^44. where

of error for the whole, lest by collusive persuasion, or by neg- f doctrine
T 1 11111 ■ r I t -i"^ ° advanced m

ligence, he should hurt the representative or the deceased. the text is

admitted by the court.] ||But the above cases (even the last) seem all to have been
before the 8 & 9 W. 3. c. 11. (see jmst.)^ and by the effect of that statute the death of one
plaintiff in error does not abate the writ. Clarke v. Rippon, I Barn, & A. 586.||

But if any of the defendants in error die, yet all things shall Sid. 419.
proceed, because the benefit of such judgment is to go to the 044 iff s ik
survivor, and he only is to defend it. siaill

In audita querela by two, the death of one shall not abate the Theol. 139.
writ; for the survivor is not to be restored to any thing that he sH. 7. 1.
has lost, but only to discharge himself of the execution, and ^ ^°'^' ^^^*
thereupon, notwithstanding the death of the other, he may pro-
ceed for a discharge in toto for himself.

[Upon the same principle it was holden, that a prohibition ^\'^^.'f°"
by husband and wife to a suit in the spiritual court, did not Crofts *Andr
abate by the death of the husband.] 57. Cas. temp.

Hardw. 395.

II Where husband and wife commjenced an action for money Checchi v.
lent by the wife before marriage, and she died pending the "9^^'^»
action, it was held, that it thereby abated. || 253^8 Dow*

& Ry. 592.

[The death of the lessor of the plaintiff in ejectment (though g Stra. 1056.
only tenant for life) is no abatement. ||As to costs*

in such case, see Tidd, 1243. (9th edit.)||

Kferi facias doth not abate by the death of the plaintiff after Clerk v. Wi-
the seizure of the goods ; for by the seizure the property is ^J*^*"^' ^ ^'^•
changed. But if the goods seized are not sufficient to satisfy j g-^^' 322.*
the debt, a second feri facias cannot issue without a revivor s. C. 6 Mod.

18 ABATEMENT.

S90.S.C. of the judgment, (a) An extent abates where the death hap-
(«) Wharam pg^^ before the liberate ; for until tlvat is awarded, the execution
ivli^'llo*""' 's incomplete. So, a seqtiestration to compel performance of a

decree when the party dies before order for sale of the goods.
6& 9W.5. A suit for partition of lands is not abated by the death of one

C31. §3. of the tenants. Nor is a suit on the statute of hue and cry,
«7Eliz.c.i3. commenced in the name of the clerk of the peace, abated by
^ * his death or removal.

1 Burr. 147. If the plaintiff or defendant die whilst the court are consider-

219. 4 Burr, ing of their judgment, ||or after a special verdict or special case,
2277. Bates v. j^^jj pending the time for argument, or for advising thereon, or
iT^m°R!c57. *^" ^ motion in arrest of judgment, or for a new trial,]) they will
||i Ken. 253. permit the judgment to be entered up as of the term in which it
1 East, 409. regularly might have been : so, perhaps, if there be any frivolous
T-^T"- '^^' ^^^y ^y ^^^ other party ; but, where the proceedings are in the
(9th edit ) common course of law, they cannot interfere.

1 Crompton & Jervis, 47.||

Sir Thomas An information does not abate by the death of the attorney-
Waller V. general ; nor by the death of a relator who prosecutes for the
Hanger, king: nor, it seems, by the death of the m^Tmev qui tarn {b),

2 Bulstr. 26K g,p f^j, jjj gyplj ^jjgg jjjg attorney-general may proceed for the

lin" Hardr. '^' king's moiety.

161. (i) Hammon V. Griffith, Cro. Eliz. 583. Anon. Moor, 541.
Mitf. Eq. PI. The proceedings upon an information in equity can only abate
2 E Cas Abr' ^^ ^^^ death or determination of interest of the defendant. But,
1. 1 Ves. 71. i^ there are several relators, the death of any of them, while there
»Ve8.327. survives one, will not in any degree affect the suit: but, if all the
relators die, or if there is but one, and that relator dies, the Court
will not permit any further proceeding till an order has been ob-
tained for liberty to insert the name of a new relator, and such
name is inserted accordingly; otherwise there would be no per-
son liable to pay the costs of the suit, in case the information
should be deemed improper, or for any other reason should be
dismissed.
Eq. Cas. Abr. The benefit of a decree in equity may be had, notwithstanding
2- P- ''• the death of some of the parties, provided that nothing be re-

quirable of their representatives.
1 Vern. 351. After a cause has been heard on a bill of interpleader, and a

trial at law has been directed to settle the right between the
defendants, the death of the plaintiff does not abate it, for his
interest is at an end.
Continued by By the 1 7 Car. 2. c. 8. it is enacted, " That in all actions
30 Car. 2. c. 6. " personal, real, or mixed, the death of eitlier of the parties (c)
and made per- «« between verdict and judgment shall not be alleged for error, so
petualbyi Jac. « ^g g^^j^ judgment be (rf) entered within two terms after such
t)*ife'ither'of " verdict." (e)

the parties die at any time before the assizes, it is out of the statute ; but if after the assizes
begin, though before trial, it is no error ; for the assizes are but one day in law. Salk. 8.
pi. 21. [7TermR. 31. And in the former case, the court said it was in their discretion
whether they would arrest the judgment. Salk. uln supra. But in Lord Raym. 1415. it was
holden not assignable for error, it being stated on the record that the defisndant appeared per

altornatum

(F) Of Abatement by tJte Death of Parties. IS

attornatum sumn^ {d) If after the verdict, and before the day in bank, the plaintiff dies, and
the defendant signs judgment the second term after the verdict, this is within the statute, and
the same as if he had actually entered judgment on the roll. Sid. 585. [Judgment entered
according to this statute, after the plaintiff's death, shall relate in all respects to his life. 1 Lev.
278. Raym. 210. Where the jury found a special verdict, and the plaintiff died in the term
in which it was to be argued, the judgment was by consent entered up as of the first day of
that term. Pond v. King, 1 Wils. 124. Where the plaintiff dies between the verdict and the
entry of the judgment, his representative cannot take out execution without a scire facias.
Earl V. Brown, 1 Wils. 502.] \{e) The statute does not apply to cases of nonsuit, Dowbiggin
v. Harrison, 10 Barn. & C. 480 ; nor to cases where the party dies between interlocutory
judgment, and before the return of the enquiry ; it is confined to verdicts. 4 Taunt. 884.||

[An information for a penalty under the French act was ad- Attorney Ge-
judged not to be within this statute, but to abate by the death of n^ral v. Buck-
the defendant between the verdict and the judgment ; for, in the 264. *

first place, it is not an action real, personal, or mixed ; secondly,
the king cannot be properly said to be a party ; thirdly, it is not '
a duty, or in lieu of customs, or any revenue of the crown ; and
lastly, actions do not comprehend informations between party and
party, or include the king. A suggestion of the death upon the
roll confessed by the attorney-general was thought sufficient
without a writ of error.

The rule laid down by the Lord Chief Baron Gilbert in the
preceding part of this chapter respecting the non-abatement of a
suit by the death of any of the plaintiffs or defendants, when
such death made no alteration in the proceedings, though
founded in reason, was not uniformly supported by authorities ;
it is therefore enacted by the 8 & 9 W. 3. c. 11. § 7. * That
' if there be two or more plaintiffs or defendants, and one or

* more of them die, if the cause of action survive to the surviving

* plaintiff or plaintiffs, or against the surviving defendant or '

* defendants, the writ or action shall not be thereby abated ; but
' such death being suggested on the record, the action shall pro-

* ceed at the suit of such surviving plaintiff or plaintiffs against ^.

* such surviving defendant or defendants.'

The formal suggestion of the death need be only on the plea- Farr v. Denn
roll; nothing more is necessary on the nisi-prius-roll than i Burr. 562.
merely to point out to the judge what he is to try, and between
whom.

Although the statute makes mention only of actions at law. Brown v.
yet it hath been construed to prevent the abatement of a suit in Higden,
equity, provided that the subject-matter of the suit be not affected ^ ^^^' ^^^'
by it.]

* By the last-mentioned statute, § 6. it is enacted. That if any [Where a de-

* plaintiff happen to die after an interlocutory judgment, and fendant died

* before a final judgment obtained therein, the said action shall "^'O^^ the ex-

* not abate by reason thereof, if such action might originally be ti'iife'to"plead^

* prosecuted or maintained by the executors or administrators of underajudge's

* such plaintiff; and if the defendant die after such interlocutory o'der, it was

* judgment and before final judgment therein obtained, the said !u°'''T' ''^i^

* action shall not abate, if such action might originally be pro- could not*

* secuted or maintained against the executors or administrators under this' act,

* of such defendant (a), and the plaintiff, or if he be dead after *'g" judgment,

* such interlocutory judgment, his executors or administrators, ^".'^^'^"'^ P"' '^

* shall

ABATEMENT:

thereon.
1 WiIs.5I5.
Wollop V.
Irwin.l
|K«) See
4 Taunt. 884.11

Berger v.
Green,
1 Made & S.
929. ; and see
3 Maule &

S.281. 2Chitt. R,235.

Turner v.
Cowper,
Barnes, 210.

* shall and may have a scire facias against the defendant, if living

* after such interlocutory judgment; or if he died after, then

* against his executors or administrators, to shew cause why

* damages in such action shall not be assessed and recovered by

* him or them ; and if such defendant, his executors or admini-

* strators, shall appear at the return of such writ and not shew

* or allege any matter sufficient to arrest the final judgment ; or
' being returned warned, or upon two writs of scire facias it be

* returned, that the defendant, his executors or administrators,

* had nothing whereby to be summoned, or could not be found

* in the county, shall make default, that thereupon a writ of

* enquiry of damage shall be awarded, which being executed and

* returned, judgment final shall be given for the said plaintiff,

* his executors or administrators, prosecuting such writ or writs

* of scire facias, against such defendant, his executors or admi-

* nistrators respectively.*

II Where interlocutory judgment was signed, and the plaintiff
died on a subsequent day in term, the court granted a rule to
compute principal or interest on the bill of exchange on which
the action was brought. ||

6 G. 4. c.

$67.

16.

7G.4.
$26.

C. 57.

[Where plaintiff died after a rule by consent to refer to the
prothonotary, and before the report, the court allowed his
executor to be made a party to the rule, and directed the pro-
thonotary to proceed without the defendant's consent.]

II By 6 Geo. 4. c. 16. § 67. whenever an assignee of a bank-
rupt shall die, or a new assignee or assignees shall be chosen, no
action at law or suit in equity shall be abated, but the court in
which any action or suit is depending may, upon suggestion of
such death or removal and new choice, allow the name of the
surviving or new assignee or assignees to be substituted in place
of the former, and such action or suit shall be prosecuted in the
name of or names of such surviving or new assignee or assignees
in the same manner as if he or they had originally commenced
the same.

A similar provision is contained in the last insolvent debtors'
act in case of the death or removal of assignees of insolvent
debtors. U

Doct. PI. 3.

Sid. 410.
Leon. 108.
169. Ttde
tit. Baron and
Feme. In
an action
against baron
and feme, the
buron died

(G) By Reason of Coverture.
^OVERTURE is a good plea in abatement, which may be

either before the writ sued, or pending the writ. By the
first the writ is abated de facto, but the second only proves the
writ abateable ; both are to be pleaded, with this difference, that
coverture pending the writ must be pleaded jpost ultimam continu'
ationem : whereas coverture before the writ brought may be
pleaded at any time (a), because the writ is de facto abated; but
if a feme sole takes out a writ, and after marries, the defendant

(G) By Reason of Coverture, 15

was legally attached on such suit ; and therefore may plead in and the feme

chief to it any defence he has. ^nS/^r

cito ; and the court inclined to think the writ abated, because her name was changed. Stile,
138. [But 2 Ld. Raym. 1525. 2 Stra. 811. Barnard. K. B. 70. are all express that coverture
in the defendant after action brought cannot abate plaintiff 's writ. See too, to the same effect,
2 RoUe's R. 53.] (a) Vide infra.

If a writ be brought by A. and B. as baron and feme, whereas F'^z. Brief,
they were not married until the suit depended, the defendant may
plead this in abatement ; for though they cannot have a writ in
any other form, yet the writ shall abate, because it was false when
sued out.

If a writ be brought against a feme covert as sole, she may Latch, 24.
plead her coverture; but if she neglect to do it, and there be a Stile, 254.
recovery against her as a feme sole, the husband may avoid it -^ ^^ rrpj^^*
by writ of error, and may come in at any time and plead it. piea of co-

verture, whether in plaintiff or defendant, can only be in abatement. MUner v. Milnes
sTermR. 627. See tit. Baron and Feme. ||This is too generally stated. Coverture at the
time when the supposed contract was made, or cause of action arose, may be pleaded in bar
or given in evidence on non-assumpsit, for it shews an incapacity to contract, Sec.; but if the
feme was unmarried when the cause of action arose, then the plea must be in abatement ; for
it does not destroy the contract, &c. but only shows that the husband is a necessary party to
the action. 8 Terra R. 545. 3 Camp. 123. 3 Term R. 627. 6 Term R. 265.11

If an action be brought in an inferior court against a feme sole, Salk. 8. pi. 20.
and pending the suit she intermarry, and afterwards remove the ^ ^Revnold"
cause by habeas corpuSy and the plaintiff declare against her as a Qjib. Hist. *
feme sole, she may plead coverture at the time of suing the C. P. 245.
habeas corpus (b), because the proceedings here are de novo, and W [But the
the court takes no notice of what was precedent to the habeas ^^^ ?j this^"*'
corpus; but upon motion on the return of the habeas corpus, the case hath been
court will grant a procedendo ; for though this be a writ of disallowed,
right, yet where it is to abate a rightful suit, the court may Haddock v.
refuse it; and the plaintiff had bail below to this suit, which by g^^es 5551
this contrivance he is ousted of, and, possibly, by the same
means, of the debt.

If a feme sole plaintiff, after the verdict, and before the day in Cro. Car. 155.
bank, takes husband, she shall have judgment, and the defendant ^ Bulst. 5.
cannot plead this coverture, for he has no day to plead it in.

II If she take husband after suing out the writ, and before Morgan v.
declaration, the defendant cannot give the coverture in evidence 5*^"*^^%
under the general issue, but must plead it in abatement ; and so Milnm- v.
also if a married woman sues alone for an injury to her property Milnes, Term
whilst single. II R.327.

[In equity, a suit does not abate by the marriage of a female 1 Ves. 182.
defendant, but the plaintiff may proceed, only entering the name
of the husband and wife in the subsequent proceedings.
^ Though a suit in equity regularly become abated by the mar- Lady Cram-
riage of a female plaintiff, yet if she afterwards proceed in the suit ^^^^ ^- ^^
as a feme sole, the mere want of a bill of revivor is not error r*2m'.
upon which a decree can be reversed upon a bill of review by the (c) Godkin v.
defendant, (c) And if the husband die before revivor, she may l^arl Ferrers,
proceed without it, for then her incapacity to prosecute the suit ^^^2' c'tedin

ABATEMENT.

Mitf. Eq. PL

67.

flSee 7 Ves.
257. loVcs.si
13 Ves. I6l.il

is removed ; but the subsequent proceedings are m the name and
description she has acquired by the marriage.]

II As to proceedings by scire facias on marriage after judg-
ment, see tit. « Scire Facias," (C). Vol. VII. and Tidd's Prac.
1114. {9th ed.)||

(H) By a Defect in the Writ

nPHE foregoing objections, such as want of jurisdiction, disa-
bility in the plaintiff, or privilege in the defendant, 8fc. being
matters dehors^ must be shewn to the court, and must be pleaded
in proper time and manner ; but, for defects in the writ itself, the
court may ex officio abate it.

And herein we must observe, that the law hath been very strict
in obliging men to keep to the legal forms it prescribes ; and
therefore in the writ, which is the foundation of the whole pro-
ceeding, requires such certainty and exactness, as that no person
be arrested or attached by his goods, unless there appear suf-
Cro. Jac. 576, ficient grounds to warrant such proceedings ; so that if the writ
577. vary materially from that in the register, or be defective in sub-

stance, the party may take advantage of it.
Hob. 84. But though the writ vary from the register, yet, if it be war-

ranted by the modem precedents, this shall not abate it.

9H.7. 16.

10 E. 3. 1.
pi. 2. 2 Inst
662. Hob. 1.
51, 52. 84.
Carth. 172

(I) By the Writ's not agreeing with the Count.

Cro.Eliz. 729.
Cro. Jac, 651.
Jon. .■504.
[(o) The de-
fendant can-
not plead a
variance be-
tween the writ
and count,

T F the count or declaration varies in form, the defendant may
plead it in abatement (a), for the plaintiff has abated his own
writ by prosecuting it in a different manner ; but, if it varies in
substance, the defendant may move it in arrest of judgment, be-
cause the Court has no authority to proceed, a different matter
being prosecuted from that which the writ has given authority to
the Court to take cognisance of.

without praying oyer of the writ, and shewing it to the court, 2 Wils. 85. 393.] {[And as the

court will not now grant oyer of the writ, such pleas have falleu into disuse; see Tidd. 636.

(9th edit.) 1 Bos. & Pull. 645. 7East,S83.||

(5) Fitz. Brief, The declaration varying from the writ (c), as by laying the
cause of action in the reign of a present king, where the writ
supposed it to have been in the reign of a former king ; or by
giving the defendant a name different from that in the writ {d) ;
as, where the writ calls him A. B, of London, alderman, and the
plaintiff declares against him, as A, B. of LoTidon, Esq. ; or,
where the declaration is otherwise defective in not pursuing the
writ, or not setting forth the cause of action with that certainty the
law requires, or in laying the offence in a different county from
that in which the writ was brought {d) : in all such cases the
defendant may plead in abatement.

But the writ may in some cases be general, and the declaration
special ; as, where a statute gives an action, but does not prescribe

any

219.321.

(rf) Allen, 17,
18.

Doct. PI. 84.
etplut under

(K) TVhere the Writ is abated de facto, <Spc. 17

any form of the writ, the writ framed by the common law will the division of

serve, and the special matter may be set forth in the declaration. *^f dedara-

' * •' twn s agreeivg

wilh the writ, tit. Pleader.

If a feme sole be disseised, and afterwards marry, and she and 14 H. 6. I4.
her husband bring an assize ; the disseisin must be alleged to be 2 And. 97.
done to the wife : but, if a feme disseisoress marry, in an assize
against them, the disseisin shall be alleged to be done by them
both, because there is no other form of writ.

(K) Where the Writ is abated defacto, or is only
abateable.

XJERE the general rule to be observed is, that where the writ 2 H. 6. 4.

is de facto a nullity and destroyed, so that judgment there- ,^°'^'*^'-^'
upon would be erroneous, there the writ is de facto abated j as, if " "'\.^ ^q^ •■
an action be brought against a feme covert as sole, this makes
another man's property liable without giving him an opportunity
of defending himself; which would be contrary to common jus-
tice, and therefore the writ is de facto abated, la)

So, if the return of a.plunes mandxnmis be laid to be after the Carth. 172.
beginning of a term, and the memorandum of the bill be entered ^"^ ^" *'"^
generally of that term, this makes the writ a perfect nullity ; for ^'^^^ leave'to
by the plaintifPs own shewing he had no cause of action at the amend. 2 Lev.
time when the action was brought. 197.

[So, if the matter in question appear to be exclusively of eccle- Br. Office, &c.
siastical cognizance ih) ; or, if an appeal of death be brought by a V-}^- 22 E. 4.
woman of the death of anyone else than her husband (c) ; or the TAVjorj 4 ^
debt be laid to be under forty shillings. (c) 3 Burr.

1592. 4 Term R. 495.

So, in equity, if a bill of appeal and review be brought of a Jennet v.
decree in the court of a county palatine. 1 V •'^''i84

And as in these cases a fatal objection to the proceeding ap- Hob. 280.
pears upon the very face of the record, the court may and ought ' ^'** ^^r
ex officio to abate the suit at any time, and in any stage of it.
For the court, who are to judge according to law, are not con-
cluded by the admission of the parties of any thing that judicially
appears to be contrary to law.

Regard to public decorum and their own dignity sometimes Dacosta v.

calls upon the court to interfere in this manner ; as, where the Jones, Cowp,

question proposed on the record is idle in itself, involves no civil t ^' ^^'^^'
*. , , .'. * 1 ,1 . , . . ,. ' . . , Leesom, 2 H.

right or mjury, and would introduce m its discussion indecent or Black. R. 43,

improper evidence.

The courts, having a general and necessary control for the Steane v.

purposes of justice over all causes depending before them, will )^pl'"^J'p

occasionally interpose on the motion of a defendant, and stay the 754^Kenn'ard

proceedings. Thus, though upon the face of the record the de- v. Jones,

mand exceed the sum of forty shillings, yet, if upon affidavits on 4 Term R,

the part of the defendant, uncontradicted by the plaintiff, it be ^^5. Welling-

shewn that in fact it do not amount to that sum, the cause will ^°Xerra R 6«

Vol. I. C not

18 ABATEMENT.

not be permitted to proceed any farther in the superior court.

(a) Petrie v. (a) So, if in an action for bribery on the statute of 2 G. 2. c. 24-.

White, it appear that the plaintiff was guilty of lailful delay in the pro-

a Term R. 5. gecution of his suit, which fact the defendant could not intro-
duce either on the lecord, or at the trial, the court will stay the
proceedings; for "iVil/itl delay is expressly prohibited by the
statute.

Pcshall V. So, where they find that actions have been brought against

M^*°"'r^ several upon a penal statute which makes only one offence; they

zrerniR. 712. -ii ^ '.i ' i- * f u n

will stay the proceed mgs upon payment or one penalty.]

(A) Salk. 2. Where the writ is only abateable, it must be abated by plead-

2l 1 R^° ing in time; for matters in (&) and before the writ (c), cannot
853. Show.' ^^ taken advantage of in error.

169. Roll. Abr. 783. That a man shall not assign that for error which he might have
pleaded in abatement. Carth. 124. There is a difference between original and judicial
writs ; for in the former, matter of form abates them as well as substance ; aliler in the latter;
for if the substance be good, the want of form will be aided. 41 E. 3. 13, 14. (c) Other-
wise, of faults in the proceedings after the writ. Bro. Faux Latin, 9. 48. For this, mde tit.
£rror,

Carth. 124. Therefore, if a feme covert bring an action in her own name

3 Term li 627 ^^^ attornatum, and the defendant plead in bar to the action, he
Cro. EL 554. shall never afterwards assign the coverture for error.
Salk. 4. pi. 10. So, though it be a good plea for a defendant to say that a
stranger is tenant in common with the plaintiff, yet if he does
not plead it in abatement^ he shall not have advantage of it in
arrest of judgment.
arth.261. So, if an action be brought against one executor, where there

are more, if that one executor do not plead this in abatement,
but plead to the action, he shall never have advantage of this plea
afterwards.
jICroEHz.554. So, where trespass is brought by one joint-tenant, or by one
Moor, 466. II tenant in common, and the defendant pleads to the action, and
the jury find specially, that another (not named) is joint-tenant or
tenant in common with the plaintiff; yet he shall have judgment,
notwithstanding the writ at first was abateable.
Saund.291.'' So, where an action of debt is brought on a joint bond against

one of the obligors, and upon ncni est factum pleaded, the jury
find that J. S. (then living) was jointly bound with the defend-
ant, yet the plaintiff shall have judgment.
Trin. 24 Car. Tenant in common of lands brought an action of trover in
2. Rot. 1216. his own name alone for cutting down trees and carrying them
tween Black- ^^''^y ' ^^^ defendant pleaded to issue ; and in a special verdict it
burn V. Grove, ^^s found, that the plaintiff was tenant in common with J. S. not
cited in Carth. named; yet the plaintiff had judgment, because this was a mat-
^"'* ter pleadable in abatement.

Ree« V. Abbot, [If one only be sued on a joint note, it must be pleaded in
AhjT'* ^^^* abatement ; it will not be error. So, in actions against partners.
Smith 2 Black ^^^ where an action is brought by a joint covenantee (rf), ad-
R. 947. vantage may be taken of it by demurring generally.

Rice V. Shute, 5 Burr. 2611. l Black. R. 695. S. C. (rf) Cabel v. Vaughan, 1 Saund. 291.
1 Sid. 420. S.C. 1 Ventr. 34. S. C. B.N.-P. 158. 5 Co. 119. ||That is if it appears on the
record that there is another covenantee living and not joined, or if it be made to appear by

praying

(K) Where tfie Writ is abated de facto, (§'C. 19

praying ot/cr of the deed and setting it forth, 1 Will, Saund. 154, a. notd, and cases therein ;
and in such case the nonjoinder is also a ground of nonsuit or of error. Ibid.W

In such a plea to^n action on a bond, it must be stated that Sayer v. Chay-

the other obligor executed the deed, and that he is still alive. iTr^is-'^'d

It is not sufficient to say, that another, not named, was jointly 291.* iiorner

bound. But, if it appear on the face of the declaration that both v. Moor,

obligors have sealed, and both are living, the objection is good M. 2 G. 2.

in arrest of judgment. fjfj'' ^.P""?'

•^ o 2614.; Ijand

see 1 Will. Saund. 91 in notes.||
But in trespass it is no plea in abatement that there is an- , , „ ., ^
other joint-trespasser not named, (a) J 11(a) So, in an>

case of tort; Govett v. Radnidge, 5 East, 62. 1 Will. Saund. 291. e.; for torts are several in
their nature, and the plaintiff may elect to sue all or any of the parties. But if the action is
founded on matter ex qnasi contractu, though its J'orin be in tort the defendant may plead in
abatement that other parties ought to be joined. Buddie v. Wilson, 6 Term 11.369. Powell
V. Layton, 2 New R. 565. Weall v. King, 12 East, 452.; and see Green v. Greenbank,
2 Marsh. 485. Bretherton v. Wood, 5 Brod. & B. 54. ; and there is a distinction between
2}ersonal actions of ton and such actions when they concern real property. Therefore, if one
tenant in common be sued in tort for any thing connected with the land held in common,
he may plead the tenancy in common in abatement ; see 1 W. Saund. 291 f. notdf and cases
there-ll

II If one of several part owners of a chattel sue alone for a Addison v.
tort, advantage can be taken of the objection only by plea in Hy^^*"^"^'
abatement, even though the defect appear in the declaration, gedfreworth
And if a defendant neglect to take advantage of it in that man- v. Overend,
ner, in such an action by one part-owner, he cannot afterwards 1 Will. Saund.
avail himself of it by a plea in abatement to another action by an- p^ g?^' '^n.s^^
other part-owner, {b) \\ Although in

actions of tort the nonjoinder of a co-plaintiff is matter in abatement only, yet according to
the doctrine in the note above it would seem, that where the action is substantially founded on
contract, the form of it in tort will not prevent the plaintiff being nonsuited for nonjoinder of
other plaintifis.

If a qiiare impedit be brought against the bishop and incum- Cro. Jac. 651.
bent only, without naming the patron, though this might have ""'st. 4, 5.
been pleaded in abatement, yet if the defendant plead in bar, ^c. PajJ^ ^"oe" '
it cannot after, upon a writ of error, be assigned for error; for 311. 2 Roll,
though the want of a patron's being made a defendant might Rep. 239.
make the writ abateable, yet it was not thereby actually abated ; ^y* '^^*
and nothing shall be assigned for error concerning the writ, but
what actually abates it.

If an action be brought against Sir Francis Fortesque, militem Roll. Abr. 781.
ct baronettum, and he appear and plead to issue, and a verdict '^|j ^^•
and judgment be given for the plaintiff, the defendant in a writ R"^'-Rep.45o.
of error shall not assign for error that he was a hnigJit of the
hath, and ought to be so named ; for he has lost this advan-
tage by appearing to the other name, and thereby concluded
himself.

If a writ be brought to the damage of 40/. and the plaintiff Palm.270,271.
declare ad damnum 200/. and the verdict give 30/. this is no ^^^ as to this
error after verdict, for the writ is not abated dc facto, but only [g^^t^af IfXf
abateable by plea. declaration

varies in form, the defendant must plead it in abatement; but, if it varies in substance, the
defendant may move it in arrest of judgment, or take advantage of it in error ; because the

C 2 Court

20 ABATEMENT.

Court has no authority to proceed, having prosecuted a different matter from that which the
writ has given it iiithority to take cognizance of. Jones, 304. Cro. Eliz. 722. Cro. Jac. 654.
For this rule tit. Error.

Anon s Atk. ^A bill in equity is not dismissed for want of parties ; but
15. Gwinnv.* stands over for amendment on paying the costs of the day,
Poole, 4 Bro. The want of parties may be pleaded in abatement ; but, upon
P.(;. 122. allowing the plea, the court will give the plaintiff leave to
Pratt, I P. amend.]
Wms, 593. Mitf. Eq. Pi. 221.

(L) Where the Writ shall abate in toto, or in Part. ]

Hof 199*217 "W'HATEVER proves the writ false at the time of suing it
245. Biiist. i! ou^ shall abate the writ entirely (a); as, if it appears by

(a) Cut tliis the plaintiff's own shewing that he had no cause of action for
falsification of part; therefore if an action of trespass be brought against two
be^in a mate- defendants, and the one plead that the other was dead die im-
rial point ; for pctrationis brevis, or that there is none such in renim naturoy
in a prcecipe the whole wi'it shall abate; for it is the plaintiff's fault to use
^itod reddat jj^g authority of the court to call in a man that was dead ; and
on^ pleadT** ' ^' ^^s no less an abuse of the process to issue it against a feigned
non-tenure, person.

and the other takes the whole tenancy on himself, the writ shall not abate in the whole, but
stand good against him that hath accepted the tenancy, because there is a proper defendant
to the action ; and the non-tenure of the one does in no ways prejudice the other defendant.
Rast. Entr. 3G5. Doctr. Pi. 7.

Doctr. PI. 7. But, if one of the defendants die pending the writ, this shall

not abate the action against the other defendant ; for this is the
act of God, and no default in the plaintiff. See the 8 & 9 W. 3.
c. 11. $ •7.suprh(P).
Hewitt V. Bib- [The bankruptcy of the plaintiff or defendant happening in
bms, 2 Wils. any stage of a suit either at law or in equity is no abatement,
krctchman v ^^^ ^^ '^^^ discharge of the plaintiff after action brought under
Beyer, 1 Term ^" insolvent act, and an assignment of liis property for tlie be-
R.463. nefit of his creditors.]

Waugh V.

Austen, 5 Term R. 437. Anon. 1 Atk. 263. Butler v. Davidson, Exchequer, East. 33 G.5.
But contr. per Lord Thurlow, where it happens before decree or judgment. Sellas v. Daw-
son, in Chancery, Dec. 8th, 1790. Co. Bpt. Laws, 622. 3d edit. Hedley v. Brown, Barnes,
389. llThe case of Sellas v. Dawson, was conudered and overruled by the Court of Exche-
quer in Butler v. Davidson. But in a later case, where after a decree in a cause, referring it
to a master to take the accounts, the plaintiffj before the accounts were taken, took the
benefit of an insolvent act, and assignees were appointed, who conceiving the suit did not
abate, took out warrants to proceed in the accounts before the master ; Lord Loughborough,
upon a motion to stay proceedings till a supplemental bill should be filed, held, that there is
no other way for the assignees to come into that court but by filing a bill : that though at
law as-signees have been allowed to proceed in the bankrupt's name, giving security for the
costs, yet at law the defendant can lose nothing by the bankruptcy of the plaintiff but his
costs ; and security for the costs, therefore, is all that is necessarj' : that in equity more is
necessary ; a plaintiff may be decreed to account and to pay the balance, and there must
therefore be a substantive plaintiff, a party to the cause, who may abide such decree as may
be made. Williams v. Kinder, 4 Ves. 387. ; and see Ry lands v. Latouche, 2 Bligh, P. C. 566.
And though bankruptcy of the plaintifF does not abate a suit in equity, yet a motion will be
' r.'itcd that plaintiff procure his assignees to file a sunnlcmcntal bill witliin a given tune, or
' ai tt,e suit be dismissed without costs. Wheeler v. Malins, 4 Madd. 171. Porter v. Cox,
5 Madd. 80. Randall v. Mumford, 18 Ves. 424. As to abateaient by death or removal of
a«*igQec*, see ttnil (F^jj

(L) Where ths Writ shall abate in toto, <§pc. ti

If there be two execQtors, and one who is named of D. say (^q l;^ 285.

he is of C. the writ shall abate against both, because they are a. Doct.

both representatives of one person, and must both be legally Pl'7. 21 H.e.

summoned ; and as they are both but one person in the eye of ^."^ ^\\ e

the law, the plaintiff cannot proceed against the one without oj^g plaintiff

the other (a) ; but, in this case, the other defendant will be shall stop the

obliged to plead, though the defendant's plea in abatement shall others from

be first determined : and if it be found for him, shall abate the Foceeding :
. , ' ' for the writ,

writ in toto. ^ ^hen abated

for want of form, is abated quoad all, though they have pleaded to issue. 8 Co. 159.
Carth. 96. But, if two executors sue, and set forth themselves tq be executors, and that they
proved the will, but upon the probate set forth, it appears that one only proved the will,
and the defendant pleads this in abatement, a respondeas ouster will be awarded; for both have
a right; and he that did not prove may come in when he pleases. Salk. 5. pi. 6. The setting
forth tliat they had proved the will amounted only to surplusage ; the method is, to declare
as executors generally, and make a profert of the letters testamentary, whereby it appears
they are executors.

At common law, non-tenure of parcel of the lands abated Booth, 29.
the whole writ; for this falsified the writ which alleged the ^° ,-"4^'
defendant to be tenant of the whole. But it was thought very ^q 'pj-om
hard that a writ which was good in part, should be totally this statute
destroyed by this plea; and therefore 25 E. 3. c. 16. enacts, that arose the dis-

the writ shall only abate for that part of which non-tenure is taction in our

1,1 •' ^ books, that

alleged. the plaintiff

cannot destroy, but may abridge, his demand.

At common law, if the tenant plead non-tenure and disclaime?; Co. Lit. 362,3.

the plaintiff cannot aver his writ, and say he was tenant ; for in q^I\^^^o^(j

real actions anciently there were no damages given ; and the 5 Lgy -^q^

plaintiff by this plea has the effect of his writ, which is to be put Lutw. 963.
into possession of the lands. But if non-tenure be pleaded, with-
out disclaimer, the plaintiff may aver his writ, and shew that the
tenant has the reversion in fee in him as well as the freehold, or
take judgment at his election.

If the demandant enters into any of the lands, pending the 4 E. 4. 52.

writ, this shall abate the writ in toto. Doct. PI. 5.

The plaintiff declared for arrears of a rent-charge, and de- gaunj, 332.

manded a larger sum than was due to him, upon his own shew- Duppa and

ing, by 7/. lOs. The defendant pleaded a bad plea, and the Mayo,

plaintiff had judgment for his whole demand ; but perceiving jK^^ f'he dif-

his mistake on the entry of the judgment, he released the 7/. IO5. ^^ ^^ that™^

and it was holden a good release {b) ; and that it was not a falsi- where the

fication of his writ, but rather an affirmance ; but, if the defend- duty to be

ant had taken advantage of it in due time, it would have abated '"^'^pxered is
.1 -, / V o certain and

the writ, (c) entire, ou the

face of the contract or specialty,- a demand of more than is due is bad, and cannot be aided
by the entry of a remittitur ; but where the duty is composed of several joarc^/s a demand of
more than is due may be aided by remitting the overplus. Cro. Jac. 499. Lord Raym. 815.
7 Mod. 88. ; and see Barnard v. Duthy, 5 Taunt. 27. Fortv v. Imber, 6 East, 454. (c) It seems
it would only have abated the writ as to the 7/. 10«. and not in toto, according to Godfrey's
Ca. 11 Rep. 45. b. See 1 Will. Saund. 285. a. b. notes, (5th ed.); and that the defendant in
replevin may recover so much rent as he proves due, although he has avowed for more, see
tit. Replevin (K), Vol. VILH

If an action is well begun, and part of the action determines Co. Lit. 285.
by act in law, and yet the like action is given for the residue, ^'

C 3 the

ABATEMENT.

Co. Lit. 285.
a.

Co. Lit. 285.
[(a) So if

Co. Lit 285.

Co. Lit
a.

285.

the writ shall not abate, but the plaintiff may proceed for tlie
residue; but, where, by the determination of part, the like action
does not remain for the residue, tliere the action, though well
commenced, shall abate.

As, if an action of waste be brought against tenant pa- outer
vie, and, pending the writ, cestinj que vie die, this shall not abate
the writ //* toto ; but the plaintiff may proceed to recover da-
mages on this writ ; for the lessor might have an action for the
damages, though cestuy que vie had died before any action of
waste brought.

So, if an ejectment be brought, and the term expire pending
the writ, yet the action shall proceed for damages only, (a)
the lessor of the plaintiff die. 2 Stra. 1056.]
Co. Lit. 285. But, if tenant per outer vie had brought an assize, and pend-
*• ing the writ, cestuy que vie had died, although the action was well

commenced, yet the writ should abate ; because no assize lies for
damages only.

So, if an action of waste were brought by baron and feme in
remainder in especial tail, and pending the writ the wife die
without issue, the writ would abate, because all actions of waste
must be ad exhoerediiationem.

So, if a writ of annuity be brought, and pending the writ the
annuity determine, the writ faileth for ever ; because the like
action cannot be maintained for the arrearages only.

When a vfxit is brought for two things, and it appears the
plaintiff cannot have any other action for the one of them, the
writ shall stand for the part that is good ; but where it appears
he can have another writ in another form for one, there the
whole writ shall abate ; because, where there can be no better
..„. „ writ brought for the parcel, it ought to continue ; but, if another

den V. Palmer ^*^'' ^^''^ ^^ brought for that parcel, it is bad, and ought to abate
Hob. 88. ' in toto. {b)

Rogers v. Cooke, Carth. 235. 1 Salk. 10. S. C. l Show. SG6. S. C. Hookin v. Quilter,
2Stra.l271. iWils. 171.S.C. Curtis v. Davis, 2 Lev. 1 1 0. Betts v. Mitchell, 10 Mod. 315,
Tate V. Whiting, n Mod. 196. Petrie v. Hannay, 3 Term R. 659. Jennings v. Newman,
4 Term R. 347. i Will. Saund. 285. a. notis.\\

(M) Where it shall abate by reason of another Action
brought for the same Thing.

T^HE law abhors multiplicity of actions ; and therefore when-
ever it appears on record, that the plaintiff has sued out two
writs against the same defendant for the same thing, the second
writ shall abate ; for if it were allowed that a man should be
twice arrested, or twice attached by his goods for the same thing,

of anpcal may j^y ^q same reason he might suffer in infinitum ; and it is not
e p ea e m necessary that both should be pending at the time of the defend-
ant's pleading in abatement ; for if there was a writ in being at
the time of suing out the second, it is plain the second was vex-
atious and ill ab initio.

275. Where

a prior suit depending, maybe pleaded to an information. 2 Hawk. P. C. 275. But it is
no good plea in abatement of an indictment, as it is of an appeal or an information, that

there

11 Co. 45.
Godfrey's
case.

Saund. 285.
Cas. Temp.
Hardw. 273.
S. P.

9 H. 6. 12.
Mo. 418. 539.
5 Co. 61.
Doctr. PI. 10,
67. Where
a prior writ

abatement
to a seconti
appeal.
2 Hawk. P. C

(M) Pendency of atioiher Action, ^

there is another indictment against the defendant for the same offence; but in such a
case the court, in discretion, will quash the first indictment. 2 Hawk. P. C. 367. [Fost.
Cr. Law. 104. Dougl. 227. Qu. Whether it be so in any informations but informations qui
tarn?]

But then it must appear plainly to be for the same thing: for 4 H. 6. 24.
an assize of lands in one county shall not abate an assize in an- Doctr. Pi. lo.
other county, for these cannot be the same lands.

llThe two suits must be between the same parties. A suit by Reeve v.
husband and wife against the wife's trustees cannot be pleaded in £^^^y» ^ ^™*
bar to a subsequent suit by her and her next friend, against her tu.464.
trustees and her husband, although the relief prayed is the
same. ||

In general writs, as trespass, assize, covenant, where the special 5 q^^ gj^
matter is not alleged, and the plaintiff is nonsuited before he Doctr. Pl.ii,
counts; though the second writ be sued pending the other, yet 12. Theol. 1.
the former shall not be pleaded in abatement, because it does not }X' ^'^^' §^^*
appear to the court that it was for the same thing ; for the first debitatus cs-"
writ being general, the plaintiff might have declared for a dis- sumpsit, the
tinct thing from what he demanded by the second writ ; but, defendant
when the first is a special writ, and sets forth the particular de- ^i^ ^ '^
mand, as in a pt'o^cipe quod reddat, SfC. there the court can other action '
readily see that it is for the same thing ; and therefore, though depending for
the plaintiff be nonsuited before he counts, yet the first shall the same mat-
abate the second writ, it being apparently brought for the same ^'^ ^" ^
thing. ^ ^ did not 'aiiego

that the plaintiff had declared in it; and by the court, — This is bad, because it cannot be tra-
versed, whether it be for the same matter or not. 7 W. B. R, Lill. Prac. Reg. 8. Mitchell
and King, 2 Barnard. K. B. 143. S. P.]

An action depending in an inferior court cannot be pleaded 5 Co.62. Spar-
to an action brouf^jht in one of the courts at Westminster for the ""^ ^J^^^^' ^^'
same thing. ^ [The plaintiff

counted upon several promises for work and labour in the parish of Saint Mary Le Boio^
London; the defendant jjleaded in abatement, that before this action brought the plaintiff
had libelled in the Admiralty for the same cause of action. Upon demurrer it was insisted for
the plaintiff) that this was within the rule in Sparry's case, and the whole court gave judg-
ment against the defendant, quod respondeat ouster. Fitzgib. 513. 5 G. 2. C. B. Ludfield v
Warden.] ||See 2 Wils. 87.11

11 If an action is brought in the Court of King's Bench or P^r Lord
Common Pleas, and the defendant pleads to it an action pending Hardwlcke
for the same matter in Ireland or the Plantations, this would be 1^^^'^^ Y^f"
no bar to the jurisdiction of the court here. And the law [a) (a)Diiion V
should be the same, if such a plea is pleaded to a suit in equity. Alvares, 4 Ves.

357.

And a suit pending in England is not a good plea in bar to a Bayley v.

subsequent suit in the Plantations for the same matter. Edwards,

3 Swanst. 703.

It has been determined, that if an action be brought in Ireland Per Lord

on a bond, and sued to judgment there, that judgment cannot Hardwicke,

be pleaded to an action in the courts here.jl SeeSris t.

Saunders, 4 Barn. & C. 41 1*.

The law will not allow two quare impedits to be brought for

the same presentation, viz. a second by the defendant against the

plaintifii when there is one pending in court by the plaintiff

fl'Jainst the defendant ; ct sic in brevi de partitioned because the

C 4 defrn.1-

24 ABATEMENT.

defendant can have the same remedy on the first writ as he could

on a second.
(a) Therefore The law is so watchful against all vexatious suits, that it will
it is n good neither suffer two actions of the same nature to be pending

plea '"''•"- for the same demand, nor even two actions of a dififerent na-
pats, that the ^ ,,%

plaintiff has ture. {0)

brought a replevin for the same thing, because in botn cases damages are to be given for that
caption. 1 H. 6. 27. Doctr. PI. 10. Sed qu. And see Comb. 229. and Skin. 388. [A re-
plevin depending in the sheriff's court, it seems, cannot be pleaded to trespass for taking cattle.
2 Wils. 87. White v. Willis.] So in an assize of darrein presentment, a quare impedit de-
pending for the same presentation is a good plea. Hob. 184. And a quare impedit is said to
oc depending when it is returned. 2 E. 4. 11.

Hob. 137. In a quare impedit brought by the Earl oi Bedford against the

(6) That where Bishop o^ Exeter Q.nd others, the defendants plead that theplain-
^espass is tiff had brought another quare impedit for the same presentation,
brought, and which is still depending and undetermined, with an averment
afterwards re- that it was the same plaint, avoidance, and disturbance ; the earl
plevmforjhe replies, that since his former writ purchased, the same church
there must not heing still void, he presented Heniy Curtis to the bishop, who
be more de- refused him, which is the disturbance he now complains of, and
fendants in the traverses that it is the same disturbance on which both actions
rcplevm than ^^j.^ brought : the defendant demurs ; and ruled, the writ
the action of should abate ; for though there must be a disturbance naturally
trespass, be- to maintain the action, yet the principal effect of the suit is to
cause it cannot recover the presentation ; and the nature of a quare impedit is to
tSe^vement ^^ ^"'^^ °" nonsuit or discontinuance, which this would defeat ;
that it is una ' ^^^' ^Y ^^is rule the plaintiff might bring a new one, without
eademque cap- leaving the former suit. And though in this case there was a
tw. Doctr. new defendant (6), yet the writ abated, because there were two
Iftheofhe/" q^are impedits against the same man; and therefore a fresh
action mii^ht defendant could no more enable him to bring a second quare
not be pleaded impedit, than a new disturbance could. But against several

in abatement, persons it is said a man may have as many quare impedits as he
avernngthe ^jjj^
fact to be the

same. In trespass against two defendants, they both pleaded in abateinetil another bill of tres-
pass pending against one of them : and three judges against Holt, who doubted, held the plea
good as to both. Carth. 96, 97.

Mayor, &c. of [If two actions be brought at the same time for the same
London v. B. thing, with some trifling variation, they may be pleaded each in

abatement of the other, averring that the cause of action in both

is the same.]
Boyccv. Dou- Pf while A. Is unlawfully imprisoned by B., C. commits an
glas, 1 Camp, assault on him, C. is guilty of the false imprisonment as well as
^^' B. i and \^ A. sues both separately, the pendency of one suit may

be pleaded in abatement of the other. ||
Allen, 34. If a second writ be brought tested the same day the former is

Gilb. Hist. abated, it shall be deemed to be sued out after the abatement of
C.P. 260. the first.

Dyer, 227. If ', an action pending in the same court be pleaded to a

Cartb^. 453. second action brought for the same thing, the plaintiff may pray
that the record may be inspected by the court, or demand oyer

517. Lord

(N) IVhere Defendant mat/ plead in Abatement or Bar, 25

of it, which, if not given him in convenient time, he may sigh Raym.347.
his judgment. " ^ 6 Mod. 122.

So, to an action of battery and false imprisonment brought in Cremer v.
K. B. the defendant pleaded in abatement another action de- Wickett,
pending for the same matter in the same court; the plaintiff ^^g qJ^j^^
replied, nul tiel record, and prayed an inspection of the record, 517. s.C.
without giving the defendant leave to rejoin : upon a demurrer
to this replication, the plaintiff had judgment, because this being
a record of the same court in which it was pleaded, the
plaintiff might have prayed that it might be inspected by the (a) Dyer, 227.
court, if any such there was. (a) The court held too, that upon
this plea the plaintiff might have prayed oyer of the record
pleaded, and for want of oyer might have signed judgment, which
is the quickest method of proceeding.

[To defeat an informer by a plea of this kind of his right of Comb v. Pitt,
suing, a defendant must shew a prior right attached in somebody ^r{j "'T' l^^%
else; and therefore if the pendency of another action by another g g Hutchin-
person for the same offence, brought in the same term, be son v. Thomas,
pleaded in abatement, it must be shewn on what particular day 2 Lev. i4i.
such other action was commenced, that its priority may be as- p^y^^fs^.
certained. So, if both actions were commenced on the same 21 69.
day, the defendant, it seems, may shew that the action, which he
states, was prior in point of time on that day, though it was for-
merly holden that the right in that case was attached in neither,
and the court could give no judgment.]

(N) Where a Defendant may plead either in Abate-
ment, or in Bar.

■y^HATEVER destroys the plaintifTs action, and disables Ventr. 249.

him for ever from recovering, may be pleaded in bar ; but ^ ^F^' ^^•

the defendant in such case is not always obliged to plead in bar, 2 Ld. Raym.

but may plead in abatement; as, in replevin for goods, the de- 982. 12 Mod.

fendant may plead property in himself, or in a stranger, either 182, 6 Mod
in bar or in abatement ; for if the plaintiff cannot prove property
in himself, he fails of his action for ever, and it is of no avail to
him who has the property, if he has it not.

Outlawry may be pleaded always in abatement, but not in bar, Co.Litt.i28.b,

unless the cause of action be forfeited. Doctr. PI. 595,

In personal actions where the damages are uncertain, outlawry

cannot be pleaded in bar; but in actions on the case, where the §l"'^oo^^°^'

debt, to avoid the law-wager, is turned into damages, outlawry 2 Ventr. 282.

may be pleaded in bar ; for it was vested in the king by the for- 3 Leon. 197.*

feiture, as a debt certain and due to the outlaw ; and the turning ^^o- ^''z. 204

it into damages, whereby it becomes uncertain, shall not divest ^*^"' ^^'
the king of what he once lawfully possessed.

Outlawry may be pleaded in bar, after it has been pleaded in 10 H. 7. 11.

abatement, becaue the thing is forfeited, and the plaintiff has no 2 Lutw. 1604.
right to recover.

Alienage may be pleaded either in bar or abatement; but with ^^o- Denizen,

this

81. 103.
Bull. Nisi Pri.
34.

20 ABATEMENT.

loCo.Litt. this difference (a), that alienage can be only pleaded in abate-

129. b. uient to an alien in league, but may be pleaded in bar to an

||See Brandon ^ijeu enemy, because the cause of action is forfeited to the king,

^T^'^i'r 23ll ^ * reprisal for the damages committed by the dominion in

(a) But 7M. of enmity.

this difterence, for in either case the ground of the plea is the incapacity of an alien to take,

or at least hold, that which is the object of the suit.

Harman v. P" ^" action on a policy, if the parties interested are neutrals

Kingston, when the policy was effected and the loss happened, and became

3 Cainp. 150. alien enemies before action brought, this can only be pleaded in

Flindt V. abatement ; for this only suspends the remedy, and if peace be

isSt, 260. ; restored it revives. ||

and sec 4 East, 502.

Combe v. Pitt, [The pendency of a prior action may be pleaded either in bar,

f ^^^' V^^' or in abatement ; though it is said in the case of Bains v. Blacks

Rep 21^6* hourrie {b) to be pleadable only in bar.]

IITnis applies only to popular actions.||

Carth. 136. In an action of debt on a judgment obtained, the defendant

(c)Carth. 1,2. cannot plead a writ of error brought and pending, either in bar

[ButQu.c/viJe Qj. jjj abatement; but in one place it is said (c), it may be pleaded

Ld. Ravin. 47.1 ^^ abatement, though not in bar. {d)

(d) But the court, on motion, will stay proceedings. IJTidd. 551. 1 145. (9th edit.)II

10 Mod. 112. A man may plead in bar or abatement to a sci. fa. as well as

to other actions.
6 Mod. 103. In replevin, if the defendant will take advantage of a variance

' ^'^^^ i^ the place where the taking is laid, from that in which it really
mult be ^^^* h® must plead it in abatement.

pleaded in abatement, and cannot be pleaded in bar. Salk. 3. pi. 8. 2 Ld. Raym. 1016.
Carth. 244. Show. 98. [But in Barnes, 353. it is said that it is considered as a plea in bar,
and not in abatement, it not being necessary to file any affidavit with it, or to plead it within
four days after the delivery of the declaration.]

Comb. 483. In debt on a bond the defendant pleads the condition for the

bIw ^ Ld payment of three several sums at three several days, and that he

Raym. 345. ^^th paid two of them at the days limited, and the third is not

yet come, and concludes in abatement ; and it was argued, that

this ought to be pleaded in bar, and not in abatement : for in

every plea in abatement the defendant ought to shew the plaintiff

how to bring a better writ, and here he shews that he ought to

have none at all, the day of payment of the third sum not being

yet come ; as, in an action for an attorney's fees, if the defendant

pleads that the plaintiff delivered no bill of them to him, he ought

to conclude in bar ; and of this opinion were the court.

Comb. 375. The plaintiff in bar to an avowry pleaded a distress for the

Sully V. same duty in other lands chargeable: and Holt said the plea

was nought ; for it should have been pleaded in abatement of

the avowry, that a former replevin was depending (if the truth

was so), or if determined, then levied by distress, et issint riens

QiTere.

Mayor and ||A mere misnomer of a plaintiff, whether a body politic or

urgcssca of natural, is pleadable only in abatement ; for a new writ may be

. ' * taken

(O) Bilatori^ Pleas, how restrained, 27

taken out by the right name ; but, if the existence of the person Stafiurd v.
or the corporation be denied, the plea is in bar : for if there be ^ p^JJ* \q^^'
no such person or corporation, there is an end of the action.

So, if in assumpsit by several partners, the defendant would Eckhardt v.
plead the bankruptcy of one of them, the plea should be in bar; i^^^^^^'j^^, ,„
because it shews that that person is incapacitated from suing at ^"^^ *
all. 11

(O) Dilatory Pleas, how restrained.

A S these pleas enter not into the merits of the case, but merely
tend to delay, the following restrictions have been laid upon
them.

By the statute 4 & 5 Ann. c. 16. for amendment of the law, [Ca) An affi-
no dilatory plea is to be received, unless on oath (a), or probable ^^^'' ^eaTir*^
cause shewn to the court. abatement

that the writ was never returned, though in giving oyer plaintiff had not set it out.
Sherman v. Alvarez, 1 Stra. 639. Ld. Raym. 1409. S. C. So, to a dilatory plea in the Crown
Office to an indictment ; Rex v. Grainger, 3 Burr. 1617. but not if pleaded at bar. Fost. 16.
llSo, to a plea to a scire facias against the heir and terre-tenants of the recoveree, that there
are other terre-tenants not returned. Phelps v. Lewis, Forrest, 139. So to aid prayer in a writ
of right. Onslow v. Smith, 2 Bos. & Pull. 584. || Want of addition requires none. Pr. R. 5.
Aflfidavit to the truth of it by the attorney sufficient. Lumly v. Foster, Barnes, 344. Where
the affidavit and plea were wrong entitled, the plea was set aside. Clixby v. Dines, Barnes,
348. So, where the affidavit to an information in the Crown Office was without any title.
Rex v. Jones, 2 Stra. 1161. The affidavit must be positive as to the truth of every matter
of fact contained in tbe plea: it must leave nothing to be collected by inference; for per
Dennison J. the words probable cause in the statute only extend to a matter of record, or
to some other collateral matter, as to the truth of which there cannot be a positive affi-
davit. Pearce v. Davis, Say. R. 295. Jilt cannot be admitted after the plaintiff has
signed judgment for want of it. Phelps v. Lewis, vbi supra)\ For the form of the affidavit,
see Lill. Entr.]

No pleas in abatement shall be received after a respondeat y, ^,, ,
ouster, else they would be pleaded in infinitum. 2 Saund. 4*i.

[But it was formerly holden that more dilatories than one might be pleaded. The!. D. 165.
a. p. 6. Bract; 400. b. Finch's Law, oG3.'\ ||And so still, where they are of different degrees.
Thus, the defendant may plead to the person of the plaintiff; and if that be overruled, he may
plead to the form of the writ.^ Com. Dig. tit. Abatement (I), 4. citing Theol. Dig. lib. x.
c. 1.11

They are to be pleaded before imparlance. yelv. 112.

Lutw. 24. 1 Stra. 520. HTidd's Prac. 659. (9th edit.) and ant^ (A).|j

[They cannot be pleaded at the same time with a plea in bar.] Cas. Temp.

Hardw. 135.

When issue is joined on them, if found against the defendant 2 Show. 42.
it shall be peremptory. [2 Wills. 367.]

Nothing shall be pleaded in abatement of a scire facias upon a Salk. 2, p. 5.
judgment that was pleadable in the original action ; for it would
be unreasonable that the defendant should disable the plaintiff
from having his execution after he has admitted him able to have
his judgment.

Though a plea in bar, being certain to a common intent, is Cro. Jac. 82.
good ; yet every dilatory plea must be certain to every intent. [3TermR.i85.]

[A dilatory plea must be pleaded within four days (the first Irnp.K.B.259.
and last both inclusive) {h) after the declaration is delivered, if £ j*^^-^\

28 ABATEMENT.

T. Webb, it be in term time ; but if in vacation, or within less than four

iTcrm R. 277. (^ays from the end of the term, it may be pleaded (there being a
(c) Doughty V. special imparlance) within the first four days inclusive of the
4Tcrm7t.520. "6xt term, as of the preceding term; and within that time it must
Brandon v. be.//erf, (for it is not sufficient that it be delivered only,) whether
Payne, Ibid, a rule to plead be given or not. (c) Sunday is reckoned as one
\\^ i-^A^ ' ^^ ^^^ ^'^^^ days, though it happen to be the last, in which case
s^? 1 Chitt. ^^® P^^* mvLsi be filed on the Saturday. (<f)

R. 704.||~ (rf) Harbord v. Pcrigal, 5 Term R; 210. ; but contrd Lee v. Charleton, 3 Term R*
642.

jT . It is inadmissible after the rule for pleading is expired (a), or

V.Ward after forfeiture of a bail-bond.

Barnes, 331. {a) 3 Salk. 519.

Kilwick V. It is not an issuable plea within an order for time to plead

Maidman, ^-^jj j|^g ^g^^i terms.

1 Burr. 59. *

Wilkes V. Earl But the court will, ex dehito justitice, compel the plaintiff to
**V^m'^^''' entitle his declaration of the true day on which it was filed, in

2 vvi Is. 256. order to give the defendant an opportunity to plead in abate-

ment.
Hutchinson v. |j And a declaration, whether it be in chief or de bene esse, is
^t*"'r °"^y ^^^ ^^^^ from the time of notice ; so that the four days in

"^™ * which to plead in abatement do not begin to run till after

notice.
Dimsdale v. If the defendant put in bail within the four days, and give

Nielson, ^ notice of justifying them, he may then plead in abatement ;
BinnsV°° ^"^ ^^^ P^^^ ^^^ stand good, should the bail be ultimately per-
Morgani 11. fected.

East, 411. It is the' same whether in a town or country cause. Hopkinson v. Henry,
13 East, 170.

Douglas v. But the defendant cannot plead in abatement before the plain-

?^u"'. o . tiff has declared.
2 Chitt. R. 7.

Saunders v. ^or before defendant has put in special bail, or has appeared.

Owen, 2 Dow. & Ry. 252. Wakefield v. Marden, 2 Chitt. R. 8.; but see 4 East, 348. 4 Maule

& S. 332.

^ ^^ If a plea in abatement is not signed by counsel, the plaintiff

De Norman- --j ^r-*- 14.11

ville v. Meyer, ^^y sign judgment, for it is no plea at all.

1 Chitt. R. 209.; and see 3 Taunt. 386.

Jennings v. "^O ^^^^ ^^ ^'^^ ^^^^ ^^ ^^^ time.

Webb, 1 Term R. 277. ; and see 5 Term R. 210. 7 Term R, 298.

p P So if no affidavit of the truth be annexed, or a defective

Forre5*i39. affidavit.

Tidd, 640. Bray v. Haller, 2 Moo. 213. Richards v. Setree, 3 Price 197. Forrest, 144.

1 Stra. 638. ^^ ^^ plaintiff may move the court to set it aside.

2 Stra. 705. Tidd. 640. ; ted vide 2 Moo. 213.

Rex v Cooke ^"^ ^^^ court will not, upon motion, quash a bad plea in

2 Barn. & C. ' abatement.

618. 4 Dowl. &R. 114. ; and see 4 Taunt. 668.

Though the affidavit is sworn before the defendant's attorney,
MrtTewman. the plea is not a nullity. ||

3 Maule &S. ^54.

(P) Of

(P) Of the Manner of Pleading in Abatement, <§r. 29^

(P) Of the Manner of pleading in Abatement, and
the Proceedings and Judgment on such Plea.

nPHE defendant cannot plead two outlawries, or two excom- Carth. 8, 9.

munications in abatement, duplicity being a fault in abate-
ment as well as in bar.

In pleas of abatement which relate to the person, there is no Salk.4. Carth.
necessity of laying a venue, for all such pleas are to be tried j^^' ^^^ ° *
where the action is laid. IJNeale v.

De Garay, 7 Term R. 243.j|

If a defendant plead matter in abatement and conclude in bar, 3 Roll. Rep.
this shall be esteemed a plea in bar, and the court will give final 64. Lev. 312.
judgment thereupon; because by pleading to the action the writ Mod. 214.
is admitted to be good, and he puts the whole matter upon his f ^^"", ^^^'
PJea.(«; of Medina and

Stoughton, 1 Ld. Raym. 595. Holt said, that if a man plead matter which goes in bar, but
begin and conclude his plea in abatement, it will be a plea in abatement ; for it is the beginning
and conclusion that make the plea. See 1 Sid. 18f?, 190. But if he begin in bar though he
conclude in abatement, or conclude in bar though he begin in abatement, it will be a plea in
bar. Vide also 1 Ld. Raym, 694. JlSee Godson v. Good, 6 Taunt. 587. 2 Marsh. 299. where
this doctrine was confirmed. ||

So, if a man plead in bar, and conclude in abatement, this 6 Mod. \03.

shall be esteemed a plea in bar ; because he could have no writ, v'^J^u* t\ f *^'

if he could have no action ; and where there could be no action, n^\ ggg \^f,!^^
the dispute about the writ would be insignificant, {b)

A plea in abatement may be good, though it contains matter Mod. 214.

in bar; but this is to be understood of such pleas as maybe loH. 7. 11.
pleaded either in disability or in bar ; as alienage, outlawry, S^c.

If a matter, which may be pleaded either in abatement or bar, g^ij^^ j^y^

be pleaded in abatement only, if the plaintiff reply or demur in 10 Mod. 112.

bar, this will be a discontinuance (c) ; because the plaintiff does Carth. 107.

not maintain his writ, and the defendant may have other matter 5,^ J^* ?).^'

in bar, from which he would hereby be excluded. C.P.259. See
2 Ventr. 179. (c) But it was aided by verdict. Salk. 218. [So, the court will give leave to
amend. 1 Wils. 502.]

But, if the defendant begin such a plea in bar and conclude Ventr. i36.
in abatement, or begin in abatement and conclude in bar, there, v.""*, *
the plaintiff may reply or demur to it, either as a plea in abate- r^^n qJ. if j^
ment or in bar ; and if he demur, or plead to it as a plea in bar, this case the
then the judgment is final [d) : for he has closed widi the de- plea be not

fendant to put the plea to the judgment of the court, as a bar to if"pe''f^ct, and
^1 ^. ^ * J t) » tiien, though

the action. the plaintiff

have discontinued he is entitled to judgment of respondeat ouster. Bonnar v. Hall, Ld.
Raym. 339. Lug v. Godwin, Id. 393. Marshall v. Charleton, 1 Barnard. K. B. 468.]

But, if he demur, or reply in abatement, as he may, then the 3 Lev. 120.
judgment is quod defcndens respondeat ouster ; for then only the r%]; '*''* ^°^'
writ is put in judgment before the court; and the plaintiff, by do not' w^rant
putting the writ only in judgment to the court, has waved the the doctrine
benefit of putting that matter in judgment to the court as a plea in the text.]
to the action; and if the judgment were not in abatement, it
would not be pursuant to the defendant's prayer.

Every

$0 ABATEMENT.

5 Mod. 152. Every pica in abatement is either to the writ or count; If the
said areuendo. action is brought by original, then the plea is petit judicium de
11(a) 'lliis is brex>ey and it must conclude in the same words (a): it'it is to the
so where the tleclaration, then it must he petit jiuUcinm de hilld et narrationey
mauer an- ^^^'* ^^^^" ^"^ narratio are the same, {b)

parent on the writ; but where it is of matter extrinsic, it is said not to be formal to beg^t
with praying judgment of the writ, but only to conclude the plea in that manner. Moor,
30.pl. 99. 1 Lutw. 11.; and see 2 W. Saund. 209. note(l).|| [(A) All pleas to the jurisdiction
conclude to the cognizance of the court, praying "judgment whether the court will have fur-
ther cognizance c J the suit :" picas to the disability conclude to the person, by praying "judg-
ment if the said /}.,the plaintitf ought to be answered:" and pleas in abatement (when the
suit is by original) conclude to the writ or declaration, by praying "judgment of the writ or
declaration, and that the same may be quashed," cassetur, made void, or abated; but if the
action be by bill, the plea must pray "judgment of the bill," and not of the declaration, the
bilt being bicre the original, and the declaration only a copy of the bill. 3 Bl. Comm. 303.]
||Whcre the proceedings were by bill, and the plea prayed judgment of the writ and declar-
ation founded thereon, it was held bad on demurrer. Attwood v. Davis, 1 Barn. & A. 172.
and see 2 Maulc & S. 484. ||

10 Mod. 112. It is said to be the conclusion of a plea, and not the matter of
Show. 4. it, that makes a plea in abatement; so that should a man plead

ll\ TJ?*"^' ^^^* ^ P^^^ ^^^^ ^^^ ^^^ matter of it might have been pleaded in bar,
erroneou"- ^^^ conclude petit quod breve cassetur, it would be but a plea in
it would be a abatement (c), and the judgment would be no other than a
plea in bar, respondeat ouster; so, vice versa, a plea in abatement, pleaded in
and final judg- fo^jjj ^f ^ pjg^ -^^ |j^_ would be a plea in bar, though an ill
ment would ^„„ fj\ ^ a

given on ^ne. {d)

it; for if the plaintiff has no cause of action, he can have no writ. See 2 W. Saund. 209.
c. notd. {d) And upon demurrer to it, there will be a general judgment for the plaintiff, not
judgment oi respondeat oxister. Nowlan v. Geddes, 1 East, 634. Wallis v. Savil, 1 Lutw. 41.
There seems however to be this distinction between pleas in abatement and pleas in bar ; that
in the latter the court will give that judgment, which upon the whole record appears to be the
proper judgment, though it be not that which the party has prayed for ; but that in the former
they will give only the particular judgment prayed for. Le Bret v. Papillon, 4 East, 502.
Chamley v. Winstanley, 5 East, 271. Rex v. Samuel Shakspeare, loEast, 85.||

6 Mod. 236. If a dilatory plea be pleaded, and the plaintiff take issue upon
per Holt. jj^ Yie may conclude with a petit judicium et damna, because there

final judgment shall be : but, if a dilatory plea be pleaded, which
the plaintiff does not deny, but confess and avoid, he must con-
clude in maintenance of his writ ; as, if the defendant plead an
attainder in disability of the plaintiff, and he plead a pardon, he
(e) 3 Mod. must not conclude with a petit Judicium et damna {e), but in
281. S. P. maintenance of his writ

3 Lev. 120. If there are four defendants, and after several continuances

three of them plead the death of one of them in abatement, viz,

petunt judicium de breve et quod breve illud cassetur; this is ill in

its conclusion, and should have been petunt judicium si curia ulte-

rius p'ocedere velit.

Salk. 220. If the defendant demur in abatement, the court will give final

pL 9. 6 Mod. judgment, because there can be no demurrer in abatement; for

wfmbtsli V "* ^^the matter oi abatement be dehors, it must be pleaded; if in-

Willoughby, trinsic, the court will take notice of it themselves.

PI. Comm. 73. there is an instance of a demurrer in abatement of a writ, for an insufficiency

appearing on it, which authority is countenanced by Theol. Dig. 1. 15. c, 9. §1. Dy. 341.

Lutw. 1644. This precedent from Plowden was cited by Ei/re J. when the judgment in the

text was given. The judgment upon the demurrer, if against the defendant, will be final.

3 Lev.

(P) Of the Manner of Pleading in Abatement, S^x, SI

3 Lev. 223.] But a demurrer in abatement to an indictment for a capital ofFence, or appeal
of death, shall not conclude the party, but he shall have leave to answer over to the offence.
2 Hawk. P. C. 354.

If there be two defendants, and they plead two several pleas Hob. 250.
in abatement^ and there be issue to one, and demurrer to the
other, if the issue be found for the defendant, the court will not
proceed on the demurrer; et sic vice versa; for in both cases
the writ being once abated, it would be unnecessary to judge
whether it ought to abate on the other's plea.

Where the matter of abatement appears on the face of the Moor, so.
record, the plea should begin and end with a petit judicium de Carth.365.
brevi; but where the matter is dehors, the defendant should only f^e^c'i^^fqs
end his plea with a petit judicium. ijSee 2 Will.

S%und. 209.11

On the plea in abatement, no advantage can be taken of the Salk. 212.

errors in the declaration (a) ; as nothing but the writ is then in qZI Y^^q'

question, for nothing else is pleaded to. u) Biit it

seems it may, if the matter of the plea in abatement be pleadable in bar* Lutw. 1604.

If on a plea in abatement, a respondeat ouster is awarded, and Carth. 447.

afterwards the defendant pleads in chief, and there is a verdict c m d "^qg^^*

for the plaintiff, yet, if the plea in abatement does not appear to Car th. 499.
have been entered on the nisi-prius record, judgment will be
arrested ; for, it being entered on the plea-roll, (which was in
court,) it must be mentioned in the nisi-prius roll, otherwise it
does not appear that it was a verdict in the same cause.

The judgment for the defendant on a plea in abatement is quod Yelv. 112.

hrve or narratio cassetur, and for the plaintiff, a respondeat ouster; 2 Show. 42.

but if issue be joined on a plea in abatement, and it be found for ^^^'y^^^'

the plaintiff, it shall be peremptory against the defendant {b) ; j W\\s. 302.

and the judgment shall be quod recuperet, because the defendant {b) Though

choosing to put the whole weight of his cause on this issue, when the tenant or

he might have had a plea in chief, it is an admission that he had ^^emandant

.Pic I \ who 10ms

no other defence, (c) -^^^J^ be an

infant. 1 Lev. 163. But not so on indictments for capital offences. 2 Hawk. P. C. 334. [(c) In
an action that sounds in damages, the jury who try this issue must assess the damages: their
omission to do so cannot be supplied by a writ of enquiry, but a venire facias de novo must be
awarded. Eichorn v. Le Maitre, 2 Wils. 368.]

[But on a demurrer to a plea in abatement, the judgment Theol. Dig.
against the defendant shall only be to answer over; because, 1. 16. c. 11.
though issues in fact are within the conusance of the party, \l^' \a'c

° . 1 ^ *^ •" 163. So, if

issues in law are not. the demurrer

be to a replication to a plea in abatement. 1 East, 542.1|
And the same judgment shall be given, though the defendant Putt v.

join in demurrer to it, as to a plea in bar, because the fault Nosworthy,
' . . , -.1 ^1 I • ^-rp r » I Ventr. 135.

originates with the plaintiff. But see Lutw.

197. 1643. 1665. But see above, whether this be not a discontinuance?

In a plea in abatement in C. P. the plaintiff may enter a 7iil Osborne v.
capiat per breve without leave of the court.] Haddock,

. Where, w^onn respondeat ouster, the defendant pleads the ge- Salk.4. p. 11.
neral issue, the plaintiff shall sign judgment, if the defendant's

attorney

ABATEMENT.

Salk.7. p. 18.

Harries V.
Jamieson,
5 Term H.
555.

Powell V.
FuUerton and
another, 2 Bos.

& Pull. 428.

and see 2 Wm.
Saund. 210. b.

Spencer's
case, 6 Co. 10.

6 Co. 11. a.
1 Salk. 393.
Cro. Car. 294.

6 Co. 10. b.

Lutw. 296.
1 Salk. 593.

attorney on delivering back a copy of the issue will not pay for
it ; and it seems that the old course was to deliver in a copy of
the whole record, viz. the declaration, plea in abatement, Sj-c.
and issue ; but the court made a rule that for the future a copy
of the declaration and issue should only be paid for.

Upon a respondeat ouster, no notice need be given of it, for
the defendant is supposed to be attending his cause in the paper
to maintain his plea.

II If a plea in abatement profess to answer the whole declar-
ation, and yet in truth answer only part of it, it will be bad.
Thus on a writ in debt for 1066/. the plaintiff declared for
1000/. borrowed by the defendant of the plaintiff, and in a second
count for 661. for interest of money lent by the plaintiff to the
defendant. The defendant pleaded in abatement of the writ,
that " the said sum of money in the said writ mentioned, and
thereby supposed to be borrowed of the plaintiff," was borrowed
by the defendant and others, and not by the defendant sepa-
rately. The plea was demurred to because it answered only
one of the causes of action, viz. that mentioned in the first count ;
and the court held it bad for that reason.

But, if a plea in abatement contain matter which goes in part
abatement of the writ only, and conclude with a prayer that the
whole writ may be abated, the court may abate so much of the
writ as the matter pleaded applies to. |l

[(Q) Of the Writ by Journies Accompts.]

HEN an abatement of a suit happens without any fault
imputable to the plaintiff, he is permitted to sue out a
fresh writ by journies accompts ; which is quasi a continuance of
the first writ, and placeth him in the situation in which he
would be supposing that he were still proceeding on that writ ;
for the defendant can avail himself of no matter which ariseth
subsequent to the time of the first writ, and could not have been
pleaded to it.

But this second writ is not suable at any distance of time after
the abatement of the first, but must be prosecuted per dietas com'
putataSf that is, recently, as soon after as reasonably may be.
What is a reasonable time is a matter in the discretion of the
court.

This writ being in a manner a continuance of the first, must
of course be brought in the same court, and for the same matter.
It ought regularly too to be between the same parties ; but it
may be used by another person than the original plaintiff, if
there be a privity between them ; as, if the original plaintiff be
executor until his son come of age, the son upon coming of age
may take out this writ, but not so, if he be administrator du-
rante niinore cctate of the son ; for in that case, as they derive
their titles from different persons, the one from the ordinary, the
other from the testator, there can be no privity.

(R) Foreign Plea. S3

If the plaintiff in qume impedit die pending the writ, and after Bro. Joum.
I'lii II- -11 Ace n 9."^

the SIX montlis have elapsed, his executors are not entitled to q j^j {qq
this writ. "'^"

A judicial writ shall never be by journies accompts, because it eCo. lo. 2.
never abates for want of form.

(R) Foreign Plea.

A FOREIGN plea (a) is when the defendant pleads such plea 2 Lil. Pr.
as carries the cause out of the court wherein it is laid, by Reg- 374.
shewing that the matter alleged is not as to its trial within the 9^^' ^°,^'
jurisdiction of that court. ingrosTed o^n

parchment, and signed by counsel. 2 Lil. Reg. 374. jjSee the form of it in Lil. Entr. 475.1|

As this plea is merely dilatory, and ousts the court of its juris- ^it- Rep. 230.
diction, it was holden, even before the statute of 4 & 5 Ann. f'^'^'|^^'j
c. 16. that it must be on oath, and before imparlance {b) ; and if 97. Vj) Ventr
the defendant refuse to make oath of the truth of his plea, the iso.
plaintiff may sign judgment as upon a nihil dicit.

If a defendant in a corporation court plead a foreign plea, Hetl. 126.
which is collateral ; as, in debt upon a bond, if he plead a release Lit. Rep. 256.
made in a place out of the jurisdiction of the court, it need not ^' ^* ^^^°^^'
be received without oath : but, if in covenant, or debt for money
to be paid at another place, he plead payment accordingly, or
covenants performed in the place limited, which was out of their
jurisdiction, it ought to be i-eceived without oath.

If there be a cause removed from Canterbury into B. R. by Pasch. 26.
habeas corpus^ and the plaintiff declare here upon a demise in Car. 2. in^.U.
London of a house in Canterbury ,- if the defendant plead an entry jyj^j j jg
and ouster in Canterbury^ so, that this cannot be tried here; this is S. C.
not a foreign plea, because it arises naturally upon the case : so, if
matter arise within two counties, and the plaintiff lay it in one,
it is not a foreign plea for the defendant to plead any matter in
the other.

In real actions in London{c) if a foreign plea be pleaded, it 3 H. 4. 12.

shall be sent into the Common Pleas to be tried (tZ); but otherwise \?^ - "^,
.. - - , . V / ' loreign pleas

It IS in personal actions. in Wahs shall

be fried, vide the statute 34 & 55 H. 8. c. 26. (rf) This is within the equity of the statute of
Glouc. c. 12. which vide expounded 2 Inst. 324, 32 5. which extends to real actions only wherein
voucher lies, and not to personal. 2 Leon. 57. Saund. 98.

Ancient demesne, and all pleas of privilege, are pleas to the ^ Mod. 335.
jurisdiction, but not foreign.

If a person be sued in an inferior court on an obligation con- Style, 22s.
ditioned to pay money out of the jurisdiction of such court, and J^"||"^y ^•
the defendant plead payment according to the condition ; this is *^ ^^'^'
not such a foreign plea as need be on oath.

So, if in covenant brought in London for payment of a certain Sid. 234.
sum of money on the return of a ship, the defendant plead, that Collins v.
the ship returned to such a place in Cormmll^ and thereupon the '^""""•
plaintiff demur, this plea is not good ; for the matter being tran-
sitory, the defendant cannot oblige the plaintiff to change his

Vol. I. D action,

ABATEJVIENT.

Ventr. 180
St. Aubin
V. Cox.
1 Mod. 81.
S.C.

Carth. 402.

Chumley t.

Broom.

5 Mod. 335.

S.C. 12 Mod.

123. S. C.

6 Mod. 146.
Sparks v.
Wood.

sLutW. 1023.

1 p. Wms.
476. pi. 135.

action, but must plead to it in such place as he had laid it : and,
had the matter been local, then it would have amounted to a
foreign plea, which must have been put in on oath.

But, where a prohibition was prayed for to the court of the
Compter in IVood Street^ London, to an action of debt there com-
menced, for that the defendant had pleaded before any imparl-
ance, that the cause of action did arise at a place out of their
jurisdiction, and offered to swear his plea, and they refused to
accept this plea ; upon this matter a prohibition was granted ;
for inferior courts have not cognizance of transitory things
which arise in places out of their jurisdiction : but then it is not
sufficient to surmise such matter for a prohibition ; but a plea to
that effect must be tendered in the inferior court, and that before
imparlance, and it must be on oath, and then, if refused, a
prohibition shall be granted, or upon such refusal a bill of excep-
tions may be made.

In debt brought in B. J?, the plaintiff lay the visne in such a
place within the county palatine of Chester^ which county was
also in the margin of the declaration : the defendant without
imparling pleaded by attorney, that he is, and at the time of
the action brought was, resident at the said place within the
said county ; and so prayed judgment, whether the Court of B. It.
ought to hold plea of this matter. The plaintiff taking this
to be a foreign plea rejected it, as not being on oath, and
signed judgment : hvitper Holt C.J. — A foreign plea is where
the action is carried out of the county where it is laid, which in
this case was not done ; so that this is only a plea to the juris-
diction of the court, which is never sworn ; so the judgment
was set aside.

In debt brought in London, a prohibition was moved for, and
ruled nisi, upon suggestion, that the defendant had tendered for
plea below, that the cause arose out of their jurisdiction, and
offered to make oath of the truth of his plea; and it was shewn,
that he tendered his plea after the court was up ; whereas it
should be in propria persona, and in court ; and though an
affidavit was offered in B. R. of the truth of his plea ; and one
lurner's case was quoted, where a prohibition had been granted
upon such an affidavit here above without oath of it below ; yet
per Powell, Gould, and Po'jois, absente Holt, the rule was dis-
charged ; for in all pleas that oust a court of jurisdiction, whether
inferior or superior, there must be oath in tliat very court of the
truth of the plea.

If one be sued in an inferior court for a matter out of the juris-
diction, the defendant may either have a prohibition from one of
\he \BiVf conxis oi Westminsta-hall ; or, in regard this may hap-
pen in a vacation, when only the Chancery is open, he may move
that :ourt for a prohibition : but then it must appear by oath
made that the fact arose out of the jurisdiction, and that the de-
fendant tendered a foreign plea before imparlance, which was
refused. And if a prohibition has been granted out of Chancery

imp-o-

ACCOMPT. ^

impravidif and without these circumstances attending it, the court
will grant a supersedeas.

If it appear on the face of the declaration, that the matter is Id. 477.
out of the jurisdiction of the court, then a prohibition will be («) In a
granted without oath of having tendered the foreign plea. And "^^^on for a
in these cases equity imitates the common law. {a) [^ an eccle-

siastical court, as to more than appears on the face of the libel, there must be an affidavit of
the truth of the suggestion. 2 Saik. 549.

On a rule to shew cause why an attachment should not be Hil. 12G. 2.
granted against the mayor of Marlborough for refusing to accept y ?'
the defendant's plea in his court, it was holden that it was not CuU. llSee
sufficient for a defendant in a court below to bring his plea into Litt.R. 236.
court, and offer to make oath of the truth of it, but that he must * ^'d. 234.
tender his plea with an affidavit annexed of the truth thereof, and ^ Salk 515 il
that this must be done before a general imparlance, but he may '

pray a special imparlance, and then come at the next court and
plead. It was also holden, that the proper way of proceeding
was not by attachment, but that a prohibition should be moved
for. And so, in the principal case, the rule for an attachment
was discharged.

ACCOMPT.

•^PHE proceedmffs m this action bemg difficult, dilatory, and Salk. 9.
J- • /7\*^-..- ij 1 -71 •£•*!. i. Garth. 89.

expensive (^), it is now seldom used, especially ir the party q]^^^ q^ 249

have other remedy, as debt, covenant, case ; or if the demand Vern. 283.
be of consequence, and the matter of an intricate nature ; for in 47o. 2 Vern.
such case it is more advisable to resort to a court of equity, where \J^' Eq. Ca.
matters of accompt are more commodiously adjusted, and deter- 2 Ark 410.
mined more advantageously for both parties ; the plaintiff being 2 Ves. sss.
entitled to a discovery of books, papers, and the defendant's [(^) From the
oath ; and on the other hand, the defendant being allowed to experiment
discount the sums paid or expended by him ; to discharge him- actjon Jq*^
self of sums under forty shillings by his own oath (provided he the case of
swears positively, and not as to belief only) ; and if by answer or Godfrey v.
other writing he charges himself, by the same to discharge him- Simnders,
self, which will be good, if there be no other evidence : farther, j^g proceed-
all reasonable allowances are made to him ; and if, after the ings seem not
accompt is stated, any thing be due to him upon the balance, he ^o deserve

is entitled to a decree in his favour. f « character

here given of
them. A matter which had been fruitlessly depending in Chancery upwards of twelve years,
was thoroughly examined, and finally determined in this form of action in the course of two
years,]

D 2 JlAnd

36 ACCOMPT.

13 Vm. 876. IJAnd from thus being able to afford a more easy and more

complete remedy in matters of accompt, courts of equity now
assume in those cases a concurrent jurisdiction with courts of law.
Dinwiddle r. Jt is to be remembered, however, that to sustain a bill for an

f ■^'T fvv^'l accompt there must be mutual demands, except in the case of
v.^Cooper,^ ' dower or of a steward, which stand upon their own specialties.
Scac. 1791*. The case of executors (a) upon payments made to their testator
cited I&id. may be another exception. 1|

We shall, therefore, under this head, but briefly consider,

(A) Against whom, either by the Common Law, or by

Statute, this Action lies.

(B) Of the Manner of bringing Accompt, with respect

to the Persons against whom it is brought; and
herein of charging one as Receiver when Bailiff,
et vice versa.
'C) The Nature of the Demands for which it may be
brought.

(D) In what Cases this is the proper Action, or some

other may be brought.

(E) What shall be a good Bar to this Action.

(F) Of the Auditors, and what shall be a good Dis-

charge before them.

(G) Of the Judgment, and subsequent Proceedings.

(A) Against whom, either by the Common Law, or by
Statute, this Action lies.

sH. 4. 12. b. "DY the common law, accompt lay only against a guardian in

Co. Liu. 172. -*-' socage (i), bailiff, or receiver, or by one in favour of trade

F N B 117 E ^"^ commerce, naming himself merchant, against another, nam-

2 Inst. 404. ing him merchant, and for the executors of a merchant; for

nCo. 90. a. between these there was such a privity, that the law presumed

2 Roll. Abr. them conusant of each other's disbursements, receipts, and

ZJIP" acquittances. W

Marlcbridge^ 52 H. 3. c. 17. is usually recited in the writ, as if the writ were warranted by
that statute only. Mayn.487. F. N. B. 118. (A.) But accompt lay against the guardian in
socage at common law, and the statute was merely in affirmance or declaration of it. Co.
Litt. 89. Cro. Car. 2i.'9. (c) By the prerogative persons could be charged as accomptants,
notwithstanding a want of privity. 1 1 Co. 89. 2 Roll. Abr. 161.]

1 Leon. 219. The Statute of 13 Edw. 1. cap. 23. gives an action of accompt

?(i)B^fT^^ ^° executors; the 25 Edw. 3. st. 5. cap. 5. to executors of exe-

thLlast' cutors; the 31 Edw. 3. c. 11. to administrators; and by the

•tatute, if Statute of 4 Ann. c. 16. sect. 27. (d) actions of accompt may be

one joint-te- brought against the executors and administrators of every guard-

(B) Of the Manner of bringing Accomptf t|^. , 37

lan, bailiff, and receiver, and by one joint-tenant, tenant in nant,ortenant
common, his executors and administrators, against the other as in common,
bailiff (e) for receiving more than his share, and against his exe- fu*^^' ^^
cutors and administrators. tjjg other '

could not have this action, unless he actually appointed him bailiff or receiver. Co. Litt. 172. a.
186. a. 200. b. So, if there had been two executors, and one had received all the debts of
the testator; for between these there was not such a privity as the law required. Bro. tit.
Acconipt, 58. 59 E, 3. 28. [But, if two guardians were in comnjon, and one took the entire
profits to his own use, accompt lay, and the count was to be against him as receiver to theii
common use. So, of co-partners ; but not so of tenants in common, for they might have an
assize. F. N. B. 118. J. One joint lessee for years might have accompt against the other, if
he took the issues and profits to his own use ; for he would otherwise be without remedy, as
he could not bring an assize. 39 E. 3. 27. b.] \\(e) But one tenant in common cannot charge
the other as receiver. Walker v. Holyday, Com. R. 272. And when he would charge him
as bailiff, he must state in the declaration that he and the defendant are tenants in common,
and that the defendant has received more than his share, else he will not bring his case within
the statute. Wheeler v. Home, Willes's R. 208. Vin. Abr. tiu Joint-tenants (R), a. pi. 4.
notes, S. C.||

Though an infant may be an executor, or may be charged in Roll. Abr. 117.
trover, being a tort ; yet, if he be made factor, bailiff, or receiver, p ^' y-^^^-
he shall not be accounUible for what he does during his infancy, g p ^^^
either in law or equity, for the same reason that other acts of his Ca. Eq. 6.
bind him not; therefore when such a one is appointed factor, his p'-3'
friends should give security for his accounting.

If I make J. S. my bailiff or receiver, and he make a deputy, F.N.B.irg.
I must have accoinpt against the bailiff or receiver himself, and ■* Leon. ,■52.
not against the deputy, for the receipt of the deputy was to the ^!^!, ji Yf "'*
use of his master. Potts, where in

Chancery, on exceptions to a Master's report, it was holden sufficient for a servant or
apprentice, in answer to a bill for an account, to say in general, that whatever he received was
by him received, and laid out again by his master's orders. But he must disclose this matter
in his answer. Vern. 1.36. Harrison v. Hart, Com. R. 41 1. Cary v. Webster, Stra. 480. But,
where on a bill for an account, and discovery of money received by defendant on the behalf of
one who became a bankrupt, he pleaded that he received it only as a menial servant to the
bankrupt, and had accounted for it to him already, and that the commissioners had examined
him on interrogatories; the plea was overruled. Wagstaff v. Bedford, Vern. 95. 2Ventr.
358. S. C. Eq. Ca. Afar. 6, p. 5. S. C. cited with a query, whether there were not circum-
stances of fraud in the case, or a combination between the bankrupt and servant.] East India
Company v. Henchman, I Ves. jun. 289.

An apprentice by the name of an apprentice, is not charge- 1 1 Co. S9. b.
able in acconipt. Though he

^ IS not charge-

able for the ordinary receipts upon his master's trade, yet upon collateral receipts, which con-
cern not the ordinary trade of his master, he is chargeable as well as another. 3 Leon. 6.5.
But then he must be charged as bailiff or receiver. 2 Inst. 379, 5«0. [Chancery will decree
an account against the administrator of an apprentice employed as a factor. Eq. Ca. Abr. 6.
p. 2.]

(B) Of the Manner of bringing Accompt, with respect
to the Persons against whom it is brought ; and
herein of charging one as Bailifi'when Receiver, et
vice versa.

TF the king appoints J. S. or he of his own head takes upon 4 Co. 1*.^,.
himself the charge and care of the estate of a lunatic, he is

D 3 but

^S ACCOMPT.

but in nature of a bailiff, and accountable to the lunatic, his exe-
cutors or administrators.
Co.Litt. 172. ^ ^'^^ s^^^' "O'^ t)e charged in accoinpt^ as surveyor, comp-
(a) So. if a troller, apprentice, reive, or heyward, nor shall a disseisor (a),
disseisor ap- or other wrongdoer, be so charged ; for, to maintain an action
points J. S. qP accompt, there must be a privity either in law or by the pro-
his rents vision of the parties,

the disseisor cannot have a writ of accompt against J. S. 5 Leon. 24. Dalt. 99. S. P.

oT? n AK At common law, if a man were disseised, and his entry taken

2 Roll. Abr. i i i i *• *u c*

550. (A) But away, he could never recover, by any action, the mesne profats ;

whether he but if the disseisor made a feoffment in fee, by the statute of

could have Gloucester^ the disseisee in an assize {b) might have recovered

an action o damages for the mesne profits, being a continuation of the first

trespass, seems » i » o

to have been wrong.

mnch controverted; for whicli, vide Roll's Abr. 554. ) 1 Co. 51. And. 352. Hob. 98, Roll's

R 101. Godb.388. Vide Xit. Ejectment.

But the Chancery interposed, and at last carried the remedy

farther than had been admitted at common law ; for though hi

the court left the plaintifit' to his remedy at common law lor the

recovery of the mesne profits, and would not assist by their

(rf) Id. 229. decree {d) ; and though in the case of Eyre and Jadcsoiu

14 Car. 2. they refused to assess any damages for a trespass,

for that was a matter determinable at common law, and to be

ascertained by a jury, yet afterwards they began to make the

person, who was the disseisor of the mesne profits, accountant

to him who had the right. And this was first begun where

lands were settled for the payment of debts; there, such trustees,

and the heir of the debtor, were accountants to the creditors

for whom the profits were to be received; and this was very

clear and plain, because such person came in and took the

profits under the trust ; and this was settled in the case of Gilpin

Chan.Ca. and Smith, 18 & 19 Car. 2. Afterwards they came to extend

80,81. their notions; and the person that took the mesne profits by

wrong, was taken as trustee for, and accountant to, him that hatl

^21-41-5* ^^'*^ "ght; and this was settled in the great case of Coventry and

2 Chan.* R. Halt, which was in the years 33, 34 & 35 Car. 2. and was this:

259. 261. Sir 'Fkomas Thynn having treated with the Lord Keeper Coventry

[It is gene- for a marriage between his son and Catharine the dnughter of

ral y true, ^^ Lord Keeper, the said Sir Tiiomas covenanted to settle lands
that a court , . i i i r • i • i

of equity will ^^ "'^ son; but the conveyance was delective, because it wanted

not decree an the words, that he should stand seised : the son recovered the
account of lands by a decree in Chancery, notwithstanding the defect in
whJrefhe ^^^ conveyance, agahist the heir at law of Sir Thomas, the
title is niersly father, and afterwards came with his bill for the mesne profits ;
legal, or the plaintifFis out of possession. Tilly v. Bridges, Pre. Ch. 252. Norton v. Frecker,
1 Atk. 524. Saver v. Pierce, 1 Ves. 232. But from this rule must be excepted all those cases
where the plaintiff is an infant, or has been prevented from asserting his title by trust, mistake, or
fraud and concealment on the part of the defendant. Duke of Bolton i?. Deane, Pre. Ch. 516.
Bennett v. Whitehead, 2 P. Wins. 64.3, Dormer v. Fortescue, 5 Atk. 130. And in such cases
the court will direct tlie account to be taken from the time the plaintiflfs title accrued, unless
•pocial circumstaacci require that it should commence from the time of entrv, or filing the
Mil. Jbid.]

and

(B) Of the Manner of bringing Accompty 8^c, 39

and though the heir at law was entitled to the mesne profits at (a) But equity
law, because the conveyance was defective, and the first decree, will give re-
which set up the title under the settlement, had ordered no "ef "n the
account for the mesne profits ; yet the court, on this bill, carried beyond that
back the account against the heir at law for all the profits which can be
received by him; and though it was objected, there was no obtained at
agreement, nor any trust, that the heir should receive the ^^w, it the
profits for the rightful proprietor, yet the court resolved, that the°de^and
he should account from the original justice, which entitled the be uncon-
proprietor to seek an accoimt against the person who had taken scientiously
the profits of the land, which in equity and justice belonged to obsmicted;
him; and though the heir had the title in law, yet since, in such case
equity and conscience, the estate belonged to another, such heir decreed in
ought to account with him for the profits he had made of what favour of the
was his. And from this time equity began to make all persons widow s re-
account for the mesne profits they had received, to such persons Lajnst the *
as had the equitable title. But in a case where the husband sold personal re-
lands for valuable consideration, and the wife, after his death, presentative
recovered her dower against the purchaser, and brought her bill ^f fu u'^-^^
in Chancery for the mesne profits from the time of the death of 3^ account
her husband, the Lord Chancellor Cowpei' would not relieve of the mesne
her ; for he said that he could not alter the law of dower, which profits from,
gave no damages against a purchaser under the husband; and !h !| ™^u r
he saw no reason in equity to introduce a different rule, (a) the husband.

Curtis V. Curtis, 2 Bro. Chan. R. 620. The same account has been directed in favour of the
representative where the widow has died before she had established her right to dower.
Wakefield v. Child, cited in Fonblanque's Notes on Eq. Tr. p. 147. Wherever a widow-
resorts to Chancery for her dov/er, (as it seems she may now do in all cases,) the general
course of that court is to give her an account fiom the time her title accrued. The mesne
profits are there considered as (what they really are) the widow's subsistence, and not
m the nature of vindictive damages. 2 Bro. Chan. R. 620. Dormer v. Fortescue, 3 Atk,
ISO, 131.]

[Courts of equity, when resorted to for the purpose of an Fonbl. Notes
account of mesne profits, will in many cases consult the principle °" ^*1* ^'*-
of convenience ; and therefore Lord Hard'wicke held in Townsend
V. Ashy-S Atk. 386., That "though the party claiming a share in
*' the New River water-works had not established his right at
" law, yet as such right appeared to the court, he ought to have
" an account of the mesne profits ; for though shares in water-
" works are a legal estate and corporeal inheritance, yet no one
" proprietor could receive the profits himself; but the company,
" or their officers, are the common hand to receive the profits ;
" and that it would be absurd to send the plaintiffs to law ; for
*' it would be difficult to bring ejectment for a thirty-sixth part,
" and bits of land in several counties ; and to bring actions of
** trespass against the terre-tenants would be very extraordinary ;
" and therefore, in point of remedy, there could not be a
" stronger case for an account of mesne profits."

In cases of hardship, as where an heir at law is disinherited Sympson v.
on a nice construction of words, the courts deem it inequitable p ''"^'^J^'
to lend their assistance if there is no infant concerned, anil leave ^' '" ^'
the party to his remedy at law by entry and ejectment.

D i Nor

ACCOMPT.

Higgins T.
York Build-
ings Company,
sAtk. 107

Gould V. Tan-
cred, 2 Atk.
534.

Fonbl. 149.

Lockey v.
Lockey, Pre.
Ch. 518, Earl
of Newburgh

Nor will they interpose in favour of judgment creditors upon a
bill to set aside a fraudulent conveyance, and decree an account
against the debtor and owner of the estate, of rents and profits
received pendente lite from the filing of the bill ; nor in favour of
a mortgagee against a mortgagor, left in possession, for any of
the years back during that possession. In the former case the
plaintiffs have their legal remedy by elegit ; and in the latter,
■where interest is not regularly paid, the mortgagee has a legal
remedy to get possession of the estate, which, if he does not avail
himself of, it is imputable to his own laches.

But, where the mortgagee enters, and takes possession, he is
subject to an account, being in the nature of a bailiff to the
mortgagor.

The cases decreeing an account of rents and profits where the
legal tide is not previously established, proceed upon that respect,
which, in justice, is due to the interests of persons, who, by in-
fancy, fraud, 8^c. have been prevented from pursuing their legal
right ; but it must not be inferred from the extreme anxiety of
courts of equity to protect such rights, that they will, at any pe-
riod (a), or under any circumstances, act upon such indulgent
disposition ; for if an infant neglect to enter within six years alter
he comes of age, he is as much bound by the statute of limita-
tations from bringing a bill for an account o^ mesne profits, as he
v. Bickerstaffe, is from an action of account at common law ; or, if there be a
r T^R"t^T^ verdict at law against the infant's title, courts of equity will not
plaintifFhas direct an account of mesne profits, but will merely retain the
been kept out bill, for the purpose of giving the infant an opportunity to
of possession estabUsh his title at law.
by fraud,

Q.U. Whether equity will not relieve at any distance of time, as no length of time will bar
fraud? Cotterell v._ Purchase, Ca. temp. Talbot, 63. l|Where the plaintiff had been pre-
vented from recoTering in ejectment by a rule of the court of law, and by an injunction, both
of them obtained at the instance of the occupier, who ultimately failed at law and in equity,
an account was directed from the time the title accrued against executors. Pulteney v. War-
ren, 6 Ves. 73.||

Ferrers v. Fer- It is very seldom, even in the most favoured cases, that interest
temp. Talb ^^ allowed, in taking the account of rents and profits.]
2, 5. Robinson t. Gumming, 2 Atk. 409

J^^'j: ^^''•. " ?• A bailiff" cannot be charged as receiver, because if he be
understood a ** charged as bailiff" upon his account (i), he shall have allowance
servant that P^ ^^^ charges and expenses, which he is not entitled to when he
hath adrainis- is charged as a receiver : also, he is not allowed in an action
tration and brought against him as a bailiff", to plead that he was before
lamlfgoods, cl^arged as receiver.

and chattels, to make the best benefit for the owner, against whom an action of accompt doth
he for the profits which he hath raised or made, his reasonable charges and expenses de-
ducted. Co. Litt. 172. a. A receiver is one who receiveth money, and is to render an account
of It, but IS not allowed any charges or expenses but such as are agreed on by the parties ;
T? ?"r *^^® ^^ plaintiff is to declare by whose hands he received it. Co. Litt. 172. a.
If a baihff be charged as receiver it seems the best way is to plead it specially, for he cannot
take advantage of it after judgment, quod computet. 2 Lev. 126. Freem. 378. Whether a
person mjiy not in he san:c action be charged as bailiff and receiver, Quturc ; and vide 1 Roll.

Abr.

(D) In what Cases this is t fie proper Action, S^c. 41

Abr. 119. Cro. Car. 240. 3 Keb. 387. 435. In some cases in an action of account against one
as receptor denariorum, he shall have allowance of his expenses, and shall account for the
profit he received, or might reasonably receive. Co. Litt. 172. a.

be brought.

A N action oi accomptYiQs not for a thing certain ; as, if a man Bro. tit. Ac-
delivers 10/. to B. to merchandize with, he shall not have compt, 35.
account of the 10/. but of the profits, which are uncertain. rown. .

No action of acccompt lies for rent reserved on a lease. So, if ^o^l- ^br. 1 16.
a lessee of goods waste them, yet no action of accompt lies against
him.

If the bailee of goods to bail over waste them, or refuse to de- Roll. Abr. lie.
liver them, no action o? accompt lies, but an action of detinue or Owen, 86.
trove?' and conversion.

If A. hath a term for years in a rectory, and tythes being set ^ Leon. 24.
forth and severed from the nine parts, B. without any pretence
of title, carries them away and sells them, yet A. shall not have
a writ of accompt against B. for after severance the tythes im-
mediately vested in A., and the taking by B. was merely wrong-
ful, and therefore without privity.

(D) In what Cases this is the proper Action, or some ,

other may be brought. i

TF a man by obligation, acknowledges that he has received Roll. Abr. lie.

money ad proficiendum et computandum, the obligee may either Dyer, 20. 1 is.
sue the bond, or have an action o^ accompt at his election. ^^°' ^i'G44.

So, \{ A. acknowledges by deed, that he has received 100/. Roll. R. 52.
from B. to be adventured to the West Indies and thence to Eng- ^ ^u^st. 256.
land back again, and covenants to render a true account thereof
upon his return, though B. may have a writ of covenant upon
this deed, yet he may also have a writ of accompt thereupon at
his election.

Assumpsit, in which the plaintiff declared, that intending to go
beyond sea, he delivered a box full of goods to the defendant
which he promised to dispose of, and to give the plaintiff an ac-
count thereof at his return : the defendant pleaded in abatement,
that he was bailiff to the plaintiff, to merchandize the said goods ;
and that he ought to bring an action of accompt, and not an
action on the case; and upon demurrer it was adjudged, that Salk. 9. pi. 1.
here being an express promise, on which the action is founded, ve* k'"^ ^'
assumpsit will lie as well as accompt -, and that wherever one acts Carth 89.
as bailiff he promises to render an account. S. C. where it

was holden,
that the action would lie by three judges against HoH, who doubted, and who told the plaintiff,
that when it came to be tried, he would not suffer him to give all the account in evidence, or
to enter into the particulars thereof; but that he should direct his proof only as to the
damages which he had sustained for not accounting according to the promise, for he would
not travel into an account in such actions. Comberb. 149. S. C.

iC ACCOMPT.

Salk, 9. pi. 2. In assumpsit for money received ad comjmtandum, and verdict
Poulter V. fyr the plaintifT, it was moved in arrest of judgment, that this
F^TaShow. J^ction tUd not lie, but accompt'; for if a man receives money to
R. 301. a special purpose, as to account, or to merchandize, it is not to

be demanded of the party as a duty, till he has neglected or re-
fused to apply it according to the trust under which he received
it; and the declaration must shew a misapplication or a breach
of trust : but it was holden, that in this case the verdict had
aided the declaration ; for it must be intended there was proof
to the jury that the defendant refused to account, or had done
somewhat else that rendered him an absolute debtor.
Tonikins v. Iff ^e action of account is now seldom resorted to, and it is

^^jl'''^'-'"'"' held that the balance of an account, however numerous the
1 M^rsh 115 ^^^"'Sj ^^y ^6 recovered in assumpsit.^
Arnold V. Webb, 5 Taunt. 452.; sed vide Scott v. Mackintosh, 2 Camp. 238. contra.

(E) What shall be a good Bar to this Action.

RoU.Abr.i2i. T^ accompt against one as bailiff, it is a good plea that he was

never his bailiff.
Bro. 29. Roll. In accompt against a bailiff, it is a good plea that he was the
Abr. 121. plaintiff's servant to drive his plough, and keep his cattle for the
drawing of his plough, absque hoc that he was his bailiff in other
manner, because he is not accountable for this occupation.
11 Ah 193 ^' '^ ^ good plea in bar to an action of accompt^ that the
So if the plaintiff hath released to him all actions.

plaiiitifFhaJ released to him all the advantage and profit that he might have by the account.
Roll. Abr. 125.

Cro. Car. 116. go, it is a good plea in bar, that the plaintiff and defendant
Hetl. 114. submitted to the award of J". S., who awarded that the defendant

ought to be acquitted against the plaintiff.
Bro. 48. Roll. So, it is a good plea in bar, that after the receipt of the sum
Abr. 123. But of which the account is demanded, by the mediation of their
the bare ac- friends, it was agreed between them, that the defendant should
an'obligation make an obligation of 100/. for the 100/. received, and the profit
would not be thence to arise, which obligation of 100/. he did make and
sufficient. Vide deliver accordingly to the plaintiff; for the acceptance of the
1 R l^t°"io3 obligation destroys the duty, and the sum in demand is thereby

as strongly released as by a release of all actions.
Roll. Abr. 123, It is no good plea in bar to the action, that the defendant hath
124. So, if the made payment of the money which he hath received to account
1 ^ds that the ^^^^'j or that he hath made satisfaction for the same,
plaintiff" has given him an acquittance for the sum received. Bro. tit. Account, 59. For these
pleas, being matters which shew that he was once accountable, are only to be made use of
before the auditors. Vide Dyer, 22. 145. 6 Co. Ferrer's case. 4 Leon. 61. Stile, 55o. 410.

49 E. 3. to. [Nonage is a good plea in bar of this action. So is pLaie com-

4iE. 3. 5. 9. putavtt, and an account before the plaintiff would be sufficient.
Lutw. 58. " ■f/<'"^ coviputavit and a release are the only pleas which admit
3 Wils. 1 13, the plaintiff to be accountable that can be pleaded in bar to the
action ; and these are allowed, because they are total extinctions
of the right of action. This being a matter for the court to

judge

(F) Of tJie Auditors, and what shall he a good Discharge, ^x. 43

judge of, they must be pleaded specially, and cannot be given in
evidence on ne unqjie receivour.

If the plaintiff charge the defendant as receiver for a particular Southcot v.
time, he must ansv^rer that time precisely. . Rlvni' 57

The defendant may plead the statute of limitations in this ac- St.21 Jac. 1.
tion; but, if the plaintiff reply that it was an account between c. I6. §5. Firf.
merchants, the plea will not avail him. Ch 518

If the defendant plead that he has accounted before R. and W., Bui. Ni. Pri.
evidence that he accounted before R. only will be sufficient, for 127. C4th edit.)
the accounting is the substance.] ,

(F) Of the Auditors, and what shall be a good Dis-
charge before them.

TN an action of accompt there are two judgments; the first is Mod. 42.

quod computet, after which the court assigns auditors, usually p ^"^' '^^'
two of the officers of the court, who are armed with authority to l^J^ 49
convene the parties before them de die in diem, at any day or Rast. 14,
place that they shall appoint, till the account is determined. The Lutw. 50. Of
time by which the account is to be settled, is prefixed by the auditors as-
court; but, if the account be of a long and confused nature, the parses them-
court, on application, will enlarge the time, [a) If either of the selves, by vir-
parties think the auditors do him injustice, he may apply to the tue of the
court; and if rhe defendant denies any article, or demurs to any statute vv. 2.
demand, it is to be tried and determined in court. 2 Inst. sso.

Brownl. 24. [Where the auditors are not assigned by the court, the remedy for not making
such allowances to the accountant as they ought to do, is bj' writ o{ ex parte talis^ which is a
commission to the treasurer and barons of the Exchequer to take the account. F. N. B. 129.]
JlTwo principal officers of the Court of King's Bench were on motion appointed auditors after
a judgment quod coviputet. Smith v. Smith, 2 Cliitt. R. 10. Archer v. Pritchard, 3 Dow. &
Ry. 596. The rule to appoint auditors is absolute in the first instance, /ftjrf.ll [2 Inst. 38 r.
(a) All articles of account, though incurred since the writ, shall be included, and the whole
brought down to the time when the auditors make an end of their account ; per Ld. Mansfield
2 Burr. 1086.]

I Whatever may be pleaded to the action shall never be allowed Leon. 219.
of as a good discharge before the auditors ; therefore, where in {^^^"s. 113.
accompt the defendant pleaded never his receiver, &c. and this ^^ z,yo\d trou-
being found against him, he was adjudged to account; and be- ble and charge
fore the auditors he pleaded a submission of all debts, accounts, to the parties.
^c. to J. S., who awarded that the defendant should pay 10/. j^^i^^^Jp^^'
only in discharge of all debts, accounts, ^c. which he paid ac- Hg^i j {^ '
cordingly : this was holden no good plea ; for this award, made S. C]
before the action brought, ought to have been pleaded in bar
thereof; which being omitted, he hath lost the advantage thereof,
and shall not plead it before auditors.

[Nothing can be pleaded before auditors contrary to what has Godfrey v.
been pleaded to the action, and been found by verdict: where, Saunders,
therefore, a defendant charged as surviving bailifi'of goods de- ^ Wils. 114.
livered to him and his co-bailifi'to be merchandised, and to ren-
der an account, had gone to issue upon this fact, namely, whether

upon

44 ACCOMPT.

upon his delivering over the goods to the deceased bailiff, all his
(the defendant's) concern in the trust, care, and management
thereof ceased and was at an end; which issue was found against
him : it was holden, that he could not plead afterwards before
auditors that he delivered the goods over to the co-bailiff with
the consent of the plaintiff; for this matter might have been
given in evidence upon the former issue ; and the consequence
of admitting it to have been put in issue before auditors would
have been, either two verdicts the same way, which would have
been nugatory, or two contradictory verdicts, which would have
entangled the court so much that they would not have known
what judgment to give.
41 E. 3. 25. The defendant may plead payment to the plaintiff without

shewing an acquittance.]
Roll. Abr. 124. It is a good discharge before auditors, for a factor to say, that
Bro. ut. Ac- jj^ ^ tempest, because the ship was surcharged, the goods were

cast over-board into the sea.
^, J. So, it is a good discharge before auditors, that he was robbed

(a) Or that he ^f the goods without his default or negligence. («)
put them in a warehouse from whence they were taken by an enemy. Stra. 680.
Roll. Abr. 124. ^' '^ ^ good discharge before auditors in accompt as a receiver
(6) This must of 10/. if he tenders tlie 10/. {h) and swears that after the time
be understood that the money was delivered him, he found that he durst not

ofonewhore- X^^xy. for fear of loss ; for he is not obliged to run any hazard
ceives money i- ir " ^

to trade and himself.

merchandize therewith ; for no other receiver is in any case obliged to buy or sell. Roll.
Abr. 124. Qiusre, Whether such oath be necessary; and vide 2 Mod. 101. 1 Bulst. 104.
Eq. Ca. Abr. 369. 2 Vern. 638. 3 Wnis. 185. 187. 279. 10 Mod. 144. 12 Mod. 514, 602.
[It seems that the defendant may, in some cases, purge himself by his own oath. The statute
of 4 Ann. c. 16. $ 27. gives the auditors a power in the cases there providedfor, of administer-
ing an oath, and examining the parties. Fitz. Abr. Accompt, p. 40. Bro. Accompt, p. 66.
2 Mod. 101.]

^oll. Abr. 125. If a bailiff of a manor receives the rents and profits of the
tenants, and retains them two or three years, yet in a writ of
accompt he is not to account for the profits thence arising in the
mean time, for he had not any warrant to merchandize with the
money, or to gain or lose thereby,
a Mod. 100. If in accompt the defendant pleads before auditors, that the

and the above goods for which he is to account were bona peritura ; and, not-
(c) Nor pawn, withstanding his care in keeping them, were worse, and that they
a Stra. 1187. remained in his hands for want of buyers, and were in danger
(<f) Factors of growing worse, and that therefore he sold them upon credit
now have fo a man beyond sea; this is no goo<l plea, for a factor cannot
commission. ^^' even bona peritura upon credit (c), without a particular com-
mission so to do. (rf)
Bui. Ni. Pri. [The defendant cannot in an action of account pay money into

court, as he may in an assumpsit.
1 Lutw. 63. If the plea oi' plane compuiavit be found against the defendant,

he shall account before the auditors for the whole money he is .
charged with, for this plea admits the receipt of the whole.

' ' ^ (G) Of

ACCORD AND SATISFACTION. 45

(G) Of the Judgment, and the subsequent Proceedings.

TN this action, as is above mentioned, there are two judgments; i Brownl.24.

the first is quod computet; and afterwards, when tlie account Cm. Eliz. 806.
is finished, the second judgment is, that the defendant pay the ^ Black. Cora,
plaintiff' so much as he is found in arrear. (a) Upon the first (a) \vhere
judgment a capias ad computandum Hes, and if a non est inveritus final jiid<>;ment
be returned upon it, an exigent issues. It is usual to bail the ^^^"^ entered in
defendant, if he be taken on the capias^ though, by the rigour of ^["^ "•"'^'^ '""
the law, he is to account in prison. c'ourt'set it

aside upon motion, as irregular. Hughes v. Burgess, Jff. /?. H. 594. Andr. 19. S. C.

If the defendant make default after the interlocutory judgment, Cro. Eliz. 806.
at the day assigned by the auditors, final judgment shall be s Wils. ii7.
entered for the sum demanded by the plaintiff. So, if there be ^ • ^'\" '''^'
judgment on demurrer to an insufficient plea before the auditors, ^i E. 3. 87. *

2R. A. 131. p. 4.

It seems to be questionable, whether, in all cases, damages are Jenk. 288.

recoverable in account ; but it is clear that if the defendant resists * y^ ' "'"'

the plaintiff^s claim by pleading, or an increase is received by j Leo. 502.

a receiver, ad merchandizandum^ there shall be judgment for 2Leo.11 8.

damages. 3 Wils. 117.

It hath been holden, that the first judgment is not such as can 21 E..5. 9. Z2.
be revived by scire facias upon the death of the plaintiff, before ^i- ^.^s- li-
the account taken (6), or as a writ of error can be brought upon ; u^ ^'^ q-"
and yet the plaintiff cannot be nonsuited after it.

After final judgment, the plaintiff' may pray that the defendant's Lutw. 51.
body be taken in execution ; or he may pray an elegit, if he
refuses the body. See the writ to the gaoler to receive the
defendant after final judgment. Reg. 137.]

ACCORD AND SATISFACTION.

A CCORD is an agreement between two persons at least to give 5 E. 4. 7.

and accept something in satisfaction of a trespass, Sfc. done j^^j]^"^'^*^ j^g
by one to the other. This agreement, when executed, may be
pleaded in bar to an action for the trespass; for in all personal
injuries, the law gives damages as an equivalent ; and when the
party accepts of an equivalent, there is no injury or cause of com-
plaint, and therefore present satisfaction is a good plea : but, if
the wrong-doer only promise a future satisfaction, the injury con-
tinues till satisfaction is actually made, and, consequently, there
is a cause of complaint in being; and if the trespass were barred
by this plea, the plaintiff could have no remedy for the future
satisfaction, for that supposes the injury to have continuance..

(A) What

4§

ACCORD AND SATISFACTION.

(A) What shall be deemed a good Accord and Satis-

faction.

(B) To what Actions may Accord and Satisfaction be

pleaded.

(A) What shall

be deemed a
Satisfaction.

good Accord and

9E. 4. 19.

Roll.Abr. 128.
[(a) Vide
Perk. $ 749.
Dy. 75, In
the case of

A N accord must appear to be advantageous to the party (a),

otherwise it can be no satisfaction ; therefore in an action of

trespass for taking the })laintifF's cattle, it is no good plea to say,

that there was an accord that the plaintiff' should have his cattle

again ; for this is not any satisfaction.

Cumber V. Wane, Stra. 4'J6. it was said by the court, that the satisfaction must appear to them
to be a reasonable one; at least, that the contrary must not a[)pear ; that consequently, pay-
ment of a less suin could never be admitted as an accord and satisfaction for a greater.] JlSo
Pinnel's case, 5 Co. 117.; and Fitch v. Sutton, 5 East, 2.'5l.|] But, if it was to drive
them to a certain place, so that it would be a charge to him to do it, this would make it a
good accord. 2 Roll. R. 96. In covenant against the executor of tenant for life, Sec. he
pleads an acccord that he should quietly depart, and leave the possession, &c. and holden
good ; though after the death of tenant for life he had no interest, but a licence in law only
to carry away his goods. Yelv. 124. per three judges against one.

Pinnel's case, ||Though the acceptance of a less sum is not alone a good ac-
1 17 C b cord and satisfaction of a greater, since there is no consideration
for giving up the rest of the debt, (it makes no difference that there
is a promise by the debtor to pay the residue when able) yet
certain other additional advantages moving to the creditor, have
been held to render the agreement on his part to accept the less
sum bindinu.

V. Wane,
Stra. 426.
Fitch V. Sut-
ton, 5 East,
231.; and see
2 Bam. & C.
477.

Steinman v.
Magnus,
1 1 East, 390

Thus, where the debtor entered into an agreement (not sealed)
with his creditors, whereby they agreed to receive 20L per cent,
in satisfaction of their several demands, and released the re-
Lewis V.Jones, mainder in consideration that half the sum should be seaired by the
acceptances of a certain other person also a creditor, which
security was accordingly given and paid when due ; it was held
that such agreement was binding on the plaintiff*, one of the
creditors. Here the security given by the surety for half the com-
position was a beneficial consideration moving to the plaintiff" and
all the creditors, and as the surety was only induced to give it
on the faith of the defendant being discharged from the remainder
of the debts, the court considered it a fraud upon the surety, as
well as on the other creditors, that the plaintiff' should sue for the
residue of the debt.

So, although a mere agreement between the debtor and his
creditors that they will accept a composition in satisfaction of
their respective debts, is not a good accord and satisfaction
pleadable to an action brought by one of the creditors, to recover

his

4 Barn. & C
513.; and see
Boothbay v.
Sowden,
3 Camp. 1 74.
Cork v. Saun-
ders, 1 Barn.
& A. 46.

Heathcote v.
Cruickshanks,
2 Term R. 24.
and see 2 H.
Black. 317.

<^<?

.Jt >v " AA*****^***-^"

(A) What shall be deemed a good Accord and Satisfaction. 47

his whole demand, yet it seems that if the debt be ascertained by 2 Term R. 24.

the agreement and a fund provided, and all the creditors are ^"ll^^^

bound to forbear, the agreement constitutes a good plea. So, "^ '""^'
also, (it seems) if the debtor assign over all his effects to a trustee
for equal distribution among his creditors, for this is a good con-
sideration for the promise of each not to sue.

And if all the creditors verbally agree to accept a composition, Bradley v.

partly to be secured by acceptances of a third party, and partly Gregory,

by the debtor's own notes, and to execute a deed with a clause ^ ^^^'"p. 383.

of release, and if all the creditors but one sign the deed, and the q"^ ^^^^ ^^'

acceptances and notes are duly tendered to such one creditor, q i erm R,

and he then refuses to receive the bills or to execute the deed, 263.
it has been held he cannot sue the debtor for his original debt.
Lord Elleiiboroiigh held that the agreement was executed by the
signing of the other creditors, and the tender of the bills, and
that it was a good accord and satisfaction.

It has been held a good plea in assumpsit for goods sold, cSr. Kearslake

that the defendant, being payee of a promissory note, indorsed it ^' Morgan,
to the plaintiff, "for and on account of" the said debt. But if ^^^ Thomas

the demand exceeds the amount of the note, it can only be v. Heathorn,

pleaded as to so much of the demand as is covered by the amount 2 Barn. & C.

of the note. II '*^^-

An accord that each of the parties should be quit of actions

against the other, is not good («) ; because it is not any satis- g°, ' 045^^^'

faction.. Lut%7.
IJJames v. David, 5 Term R. M.jj (a) But an accord that each should give the other a quart
of wine in satisfaction of action, is good. Roll. Abr. 128.

In an action upon the statute of 5 Rich. 2. st. 1. c. 8. if the 9 E. 4. 19.

defendant saith, that after the entry an accord vans made between Roll. Abr. 128.

them, that the plaintiff should re-enter into the land, and that ^94'!'^^^''^*

the defendant should deliver the evidences of the plaintiff to the citeA Dyer,

plaintiff, this is not any bar of the action ; for the delivery of the o56. S. C.

plaintiff's own evidences can be no satisfaction of the tortious ^i^ed, {b) But,

entry, (b) ''[ '?« •»'^\^'^

•^ ^ ' title to the

evidence, it would be a good bar. Roll. Abr. 128. That the delivery of the deed by the

feoffee to cestui que use is a good accord, because it belongs to the feoffee. Cro. Eliz. 357.

An accord that the defendant should endeavour to make up and Roll. Abr. 128.
adjust differences between the plaintiff and J. 5., thai he did
endeavour, and at his own costs make up such differences, is a
good plea.

In trespass for trampling his grass, the defendant pleads that Bro. Trcs()ass,
he was amerced in the court-baron of the plaintiff' for the same <56.
trespass, which was affeered to two shillings, for which he hath
agreed with the plaintiff; and holden a good plea by the accept-
ance thereof, though the amercement in the court-baron was
extortion.

In an action upon the case for scandalous words, the defendant Roll. Abr. 128,
pleads, that after the words spoken, the plaintiff sued the de- ^^9.
fendant in the military court before the lord marshal ; where it
was ordered by that court, with the consent of the plaintiff and
defendant, in discliarge of this suit, and all other differences

between

ACCORD AND SATISFACTION.

cause it ap'
peared that
the first obli-
gation was
forfeited, and
then the pe-

(a) Where the between them, that the defendant should make a submission in

defendant writing, in a place appointed, and before certain persons, Si-c. and

Ft was^ agreed ♦'v^'"'* ^'^'^^ he did so accordingly, t^c. and on demurrer it was

the defendant holden no good plea : for it being a point of honour only (a),

should confess could be no discharge of the damages.

to the phiintiff

he had done him wrong, and should ask forgiveness on his knees, whether this was a sufficient

consideration or satisfaction. 2 Roll. Rep. 96. dubitattir. Vide Stile, 245. Salk. 71. pi. 5. ijnd

head of Arbitrament and Award.

s Lev. 55, 56. Debt upon an obligation dated the twenty-third of March,

Lobly and 24, Car. 2. upon condition to pay 10/., the defendant pleaded an
Gildart. Hob. » 1 1 c- ^ -i ,., V^ ^ i i • 11

68. Lovelace occo7a the last or Aprils 31 Car. 2. whereby it was agreed that

V. Cocket. A. the defendant should give the plaintiff a new security for this

new obligation debt, and for another due to him by obligation likewise ; and be

was given; and ^einff the executor of the obligor, and the person with whom this

holden no sa- »- , <? ' r

tisfaction be- o.ccord was made, gave security, pursuant to tlie accord, by a

bill sealed by himself; the plaintiff demurred ; and by the whole
court judgment was given for the plaintiff; for one obligation
given in satisfaction for another is no discharge, whether
grounded upon an accord or not; for the concord does not
mend the matter; and yet here the new obligation binds him de
nalty was the bonis jn-opriis, whereas the first obligation bound him only dc
therVfo'rethe ^onis lestatoris,

second being for less, could not be a satisfaction for a greater sum. Lutw. 466. Vide 5 Co.
117. Cro. Eliz. 727. 4 Mod. 88. 7 Mod. 17. [One simple contract debt cannot be pleaded
in bar of another. Roades v. Barnes, Burr. 9. Black. R. 65. If a debt is on deed or obliga-
tion without condition, the accord and satisfaction must be by deed, and so pleaded.] USee
7 East, 148. II [If there appears a condition for payraentof money, perhaps, it may be pleaded
without deed in satisfaction of the money or condition. 2 Wils. 86.]

Preston v. ^^ release of an equity of redemption is no satisfaction, because

Christmas, of no value in the eye of the law."]

2 Wils. 86. Qu. of this, and whether courts of law do not look at mortgages now with the
same eyes as the rest of the world ?

Scholey v. || Xhe satisfaction must be to the party having the legal interest

7 East 148 ^^ ^^^ debt, and must be so pleaded. Thus, where the sheriff
declared against defendant on a bail-bond, and the defendant
pleaded that the action was brought by the sheriff, as trustee for
the sheriff^s officer, and that the defendant paid the officer the
debt and costs in the action after the return day, but before the
sheriff was ruled to return the writ, and the officer accepted the
money in full satisfaction and discharge of the bail-bond and fees,
and that if any damage were afterwards incurred for default of
defendant's appearance, it was occasioned by the officer not pay-
ing over the debt and costs to the plaintiff in the action, who
would have accepted the same, Sj-c, the plea was held bad on
demurrer; for it did not appear that the officer had any legal or
equitable interest (even supposing the latter would have sufficed)
in the bond, at the time of the supposed satisfaction recovered by
such officer. II

If an accord be to do two things, and the defendant do one and
w.^ ...uo "°^ ^'^^ other, this is no bar of the action, because the plaintiff

executed, vide ^^^^ "^t any remedy for that which is not performed.

tupra and Plow. 5. 11. b. 9 Co. 79. b. 2 Jones, 158. 168. 2 Keb. 332. Salk. 76. T. Raym.

450. where

Roll. Abr. 129
That the ac-
cord must be

(A) What shall be deemed a good Accord and SatkfcKtioiu 49

450. where it is said, that an accord may be pleaded without execution, as well as an afWtra-
inent ; but quare, and see Allen v. Harris, Ld. Raym. 122. Lutw. 1537. S. C. James v.
David, 5 Term R. if. J2. 141.] ||Lynn v. Bruce, 2 H. Bl. 317. Bradley v. Gregory, 2 Camp.
383. from which cases it is clear the accord must be executed. The contrary doctrine would
" overthrow all the books," according to the language of the court in Ld. Raym. 122.j|

But, if an accoid be that the defendant shall do a certain thing 6 H. 7. ii. b.
at a day to come, in satisfaction of an action; if he perform it at ^° •^^•^^^'
tiie day, this is a good bar of the action, thongh it was executory ^ss.W
at the time of the accord made, inasmuch as he hath accepted it
in satisfaction.

If in trespass the defendant pleads a concord between himself Raym. 203.
and the plaintiff, that he should pay the plaintiff Si. in hand, ^^^^ ^"/^
and should undertake to pay the plaintiff's attorney's bill, and 2 Keb 690*^
avers that he had paid 31. and was always ready to pay the at- s. C-
ton>ey's bill, but he never shewed him any ; this is no good
plea, because the accord is not shewn to be fully executed.

f So, performance of part, and tender of performance of the Lewis v. Shep-
resid Lie, is no good plea. Jones ^6^^'

Where to debt upon bond the defendant pleaded payment of Balston v.
part before the day on which the bond became due, and a pro- Baxter, Cro.
viise to pay the rent at a day to come, to which the obligee had , \ aH^*
agreed ; the court held it no bar, it being executory. For the Harris, Ld.'
same reason a plea to an action of trover that the plaintiff Raym. 122.
agreed to discharge the defendant of the trover in consideration ^"^* ^^*'^-
■Tiis undertaking to pay a sum of money, was holden bad (a) ,^. james v
So, a plea that the plaintiff and defendant agreed to settle all David, sTerm
matters in dispute, and to bind themselves in a penalty not to R. Hi.
sue each other, [b)

So, where a defendant pleaded that his several creditors, one Heathcote v.
of whom was the plaintiff, had come to an agreement to accept Crookshauks,
a composition in satisfaction of their respective debts, to be paid np "^fi \f^'
within a reasonable time, which he tendered and was ready to caggs 0^ this
pay ; it was holden that this was no plea to the action for the subject see
whole demand ; for the agreement is unexecuted, and the pro- '*'^^*^- P- ^^-ll
mise a mere nudum pactum for want of a consideration. But
per Buller J. — If the defendant had assigned over all his effects
to a trustee in order to make an equal distribution among all his
creditors, and they had been bound by the agreement to forbear,
it might have been a good plea.]

If in an indebitatus assumpsit y Sfc. the defendant pleads an Raym. 450.
agreement between the plaintiff and defendant, and J". aS. the son 2 Jones, 158.
of the defendant, that the plaintiff should deliver to the defend- ^^^ ^^^^
ant certain clothes, which the plaintiff then had in his custody ; Barber,
and that the plaintiff should accept the said son her debtor for 91.
to be paid so soon as he received certain pay from the king, due
to him as lieutenant of a certain ship, hi full satisfaction, S^c. and
that after, so soon as the son received his said pay, he was ready
and offered to pay, <§r. and that he yet is ready ; this is no good
plea, for it doth not appear that there was any good consider- (r) Vide
ation why the son should pay, but a bare agreement, without con- 2 Jones, I68.
sideration (c) ; and admit the promise good, if not in writing, by ^ *'*• ,

Vol. I. E 29 Car. '^^'■'''^'-

so ACCORD AND SATISFACTION.

29 Car. 2. c. 3. no action lies thereupon ; and therefore it
ought to have been shewn that it was in writing ; for when such
agreement is pleaded in bar, it must appear to the court, that
an action will lie thereupon ; for the defendant shall not take
away the j)lainti{I''s present action, and not give him another
' upon agreement pleaded.

5 Lev. 189. If in covenant to permit the plaintiff to receive 100/. per ann.

Russell and j.^^^^^ jj^^ Jefendant pleads a concord between the plaintiff and
"*^ ' defendant, that each of them should deliver his part of the in-

denture into the hands of a third person, to be cancelled, and
that each of them should be discharged of all actions upon the
indenture, and avers that he had delivered his part to the third
person ; yet this is no good plea, because it does not appear
to be executed on both parts. Sed, qu. the default being the
plaintiffs.

Per Heath J. || Where a man by deed acknowledges himself to be satisfied,

* Taunt. 145. jj. jg ^ good bar without receiving any thing. ||

(B) To what Actions may Accord with Satisfaction

be pleaded.

4 Co. 1. A ^ accord with satisfaction is no good plea to an action

9 Co. 79. b. •**■ j-eal (a) ; for a right or title to a freehold cannot be barred
detinue.'for ^V ^"7 collateral satisfaction.

charters concerning a freehold and inheritance, an accord is a good plea. 7 E.4.33. 9 Co. 78.
So, in waste against a lessee for years, though in the tenet, an accord is a good plea, because
a chattel only is to be recovered. N. Bendl. 35. Mo. 6. 9 Co. 78. But 6 Co. 44. contr.
So, in ravishment de gard, and quare ejecit infra termimim. 9 Co. 78. An accord with satis-
faction is a good plea in an ejectione firmce ; for an ejectment includes a trespass, and they
are so interwoven that they cannot be severed ; and in all actions which suppose a wrong
vi et armis, where a capias and exigent lay at common law, there an accord is a good plea.
9 Co. 77. Brownl. 134. S. C. 2 Brownl. 128. S. C Godb. 149. ||It seems that satisfac-
tion by one tort-feasor discharges the others, 3 Taunt. 1 1 7.|| In an appeal of mat/hem an
accord with satisfaction is a good plea; notwithstanding the writ be felonice. 6 Co. 44.
9 Co. 78. So, in attaint, 13 E. 4. 1. 6 Co. 44. Cro. 357. Dyer, 75. If an accord be a
good plea in a qiuire impedit, — qiuere ; and vide 1 1 H. 7. 13. b. 6 Co. 44. a. 2 Brownl. 128,
139. Brownl. 124.

Q ^, When a duty in certain accrues by the deed tempore coitfec-

Lutw. 358. tionis scriptif as by covenant, bill, or obligation, to pay a certain
S. P. Cro. Jac. sum of money ; this certain duty takes its essence originally
^^*n*R* ^"^ °"'y ^y writing, and therefore ought to be avoided by
187.° IJSee niatter of as high a nature, though the duty be merely in the
Sch'oley v. personalty.
Meams, 7 East, i48.||

Kaye v. Wag- ||And therefore accord and satisfaction, made beforehvesich of
423"' Lowe*' ^ covenant under se'^f, cannot be pleaded in bar of an action
T. E<"nnton, on the covenant. ||
f Price, 604.; and see Drake v. Mitchell, 3 East, 251.

AH "-9^^?: ^"'' ^^ ^^ covenant against an assignee a breach is assigned,

Jac. 304. Co. *" "°^ repairing the house, the defendant may plead an accord
Entr. 117. between himself and the plaintiff, and execution thereof, m
Yeiv. 185". satisfactiotie et exoneratioiie reparationum i^rad.} for no certain

duty

duty accrued by the deed, but the action is founded upon a tort Noy, i lo.

or default subsequent, together with the deed, and damaojes only ^Ji?' ^^^' ^°P;
* t ] I • u • *i, u Wing.Max.64.

to be recovered, which are m the personalty. 9 Co? 79, b.

An accord with satisfaction generally is a good plea in all g q^ ^^
actions where damages only are to be recovered. Dyer, 75.

II To a scire facias on a bond to the crown a plea of payment Rex v. Ellis,
after the day, and before the writ issued, and acceptance by the 1 Price R.
crown in satisfaction, is not sufficient. |j ^^'

^HE best and safest way to plead an accord is to plead it by 9 Co. so.

way of satisfaction^ and not by way of accord ; for if it is Vide Roll,
pleaded by way o^ accord, a precise execution thereof, in every ^^''- ^^^*
part, must be pleaded ; and if there be a failure in any part, the 241 gtra 57J
plea is insufficient ; but if it is pleaded by way of satisfaction, the
defendant need plead no more, but that he paid the plaintiff 105.
in full satisfaction for the action, which he received.

If in covenant, by the heir of the reversioner against the exe- Yelv. 124,
cutor of tenant for life, for not repairing, S^x. the defendant ^^^* ^'
pleads that the testator died 19th March, and that the 2'id March f^j.^ ^^^
concordat, et agreat. fuit between the plaintiff and defendant, CutclifF;
that the defendant should quietly depart and leave the posses- adjudged by
sion to the plaintiff, and that i7i consider atione inde the plaintiff j^^^J^^'^^" ^"'1
did agree to discharge him of the breach i?i 7ion reparando, and j^ynnalns said
shews that the 25th March he did depart, 4"^. this is no good plea, the time being
because the concord is uncertain as to the time of his departure ; indefinite, the
and though he shews a departure within five days, yet he cannot ^^w*^!^'^\
help the original insufficiency of the concord, which is the found- i,ggjj imme-
ation of all. diatelv. Noy,

110. S.C. cited.

In an assumpsit for wares sold and delivered, the defendant Young v.
pleaded that he gave and delivered unto the plaintiff .a beaver p .v*
hat in satisfaction and discharge, 8^c. and that the plaintiff 5 y[Q^^ 86.'
accepted the said hat in full satisfaction and discharge of the S. C.
promises, 8^c. The plaintiff replied j9ro/cs/aw^o that the defend- 2 Salk.627.
ant never gave him any such hat in satisfaction and discharge of P . ^p ,
the said promises, pro placito dicit, that he never accepted a s.C.
beaver hat in satisfaction and discharge, Sfc. On demurrer it
was insisted first, that the issue ought to be upon the giving in
satisfaction, and not upon the receiving in satisfaction, because
every gift or payment must be directed by him who gives or
pays, and not by him who receives it [a) ; but the Court held it («) Stra. 23.
well enough, and that the whole matter concerning the pay- ^'^'**
ment, as well as the acceptance in satisfaction, would be tried
upon this issue ; as to the objection of its being pleaded to be
given in satisfaction and discharge of the promises, S,'c. when it
should be pleaded in satisfaction of the money mentioned in the
promises, and not of the very promises, the court held it of no
weight.

E 2 [It

ACTIONS IN GENERAL.

Hawksliaw
V. Rawlings,
Stra. 23.
Paine v.
Masters,
Jbid. 573.
Francis v.
Oywell,
5 iJarn. 6i A.
886.

Hopkinson v.
Tahourdin,
S Chitt. R.
303. ; and see
id. 324.

1 Ld. Raym.
666. 4 Esp.
Ca. 181.

[It liath been since settled that this is the proper method of
pleading : for there are two requisites to a discharge, namely,
payment, and acceptance ; and a traverse of the acceptance is an
argumentative denial of the payment.]

II Where the plaintiff declared for tythes bargained and sold,
and the defendant pleaded that before the exhibiting of the
plaintiff's bill the defendant paid, and the plaintiff accepted,
a sum of money in discharge and satisfaction of the promises in
the declaration, and the plaintiff replied a latitat sued out before
such payment : on demurrer judgment was given against the
plea; because it appeared by the replication that the plaintiff
had sustained damages and costs by reason of the nonperform-
ance of the promises, and the plea did not allege the payment
to have been in discharge of such damages and costs.

Where in assumpsit on several promises the defendant pleaded
accord and satisfaction of the cause of action, the plea was held
bad on special demurrer, since it did not go to the whole declar-
ation.

Accord and satisfaction may be given in evidence on the
general issue, and it is not very frequently pleaded. l|

ACTIONS IN GENERAL.

nPHE design of entering into society being the protection of

our persons and security of our property, men in civil

society have a right, and indeed are obliged to apply to the

{a) Actio nihil public for redress when they are injured ; for were they allowed

• " ,!o*^5"'"" ^° ^^ their own carvers, or to make reprisals, which they might

quendi in ^^ i'^ the state of nature, such permission would introduce all

that inconvenience which the state of nature did endure, and

which government was formed to prevent : hence, therefore,

they are obliged to submit to the public the measure of their

damages, and to have recourse to the law and the courts of

justice, which are appointed to give them redress and ease in

their affairs ; and this application is what we call bringing an

action, (a)

recovery of, or restitution to something, Co. Lit. 289. and differs from a writ of error , |
which is no action, but only a commission to the judges to examine the record, Sfc. \
Jenk. 25. 2 Inst. 40. Yelv. 209. Yet, if by writ of error the plaintiff therein may recover,
or be restored to, any thing, it may be released by the name of an action. Co. Lit. 288. b.
V'ule for this 2R0II. Abr. 405. The suit till judgment is properly called an action, but not
after; and therefore a release of all actions is regularly no bar of an execution. Co. Lit. 289. a.
Roll. Abr. 291.

Under

judicio quod
sibi debetur.
Co. Lit. 285.
or a legal
demand of
one's right.
Co. Lit. 285.
a Inst. 40.
It implies a

(A) Of tJie different Kinds of Actions. 18

Under this head we shall briefly take notice,

(A) Of the different Kinds of Actions.

(B) In what Cases an Action will lie, and for whom,

and against whom.

same Action.

(A) Of the different Kinds of Actions.
A CTIONS are divided into criminal and civil. Co. Lit, 284w

2 Inst. 40.

Criminal are either to have judgment of death, as appeals of 2 Wooddes.
death, robbery, 8^c.\ or only to have judgment of damages to ^s'^*
the party, fine to the king and imprisonment, as appeals of
mayhem, &c.

Civil actions are again divided into real, personal, and mixed. Co. Lit. 284.

2 Inst, 40.

And here it may be proper to enquire a little into the nature
of those real actions which were formerly in use, and how they
came to be discontinued.

Actions real, or relating unto lands, are either droihiral, that [This is not
is, of the right of the ancestor ; or possessory, which complain the true dis.

of the violation of a right of which the parties themselves were tinction be-
^ ° tween droi-

possessed. turaUnd

possessory actions. Whether the action be droitural or possessory depends not upon whether
it complain of an injury to the demandant himself or to his ancestor, but, whether it seek to
recover the property or the possession. If the former, the action is droitural ; if the latter
it is possessory. Finch has stated this correctly. " Real actions," says he, " where a free-
*' hold shall be recovered, are possessory., or in the right. Possessory, which are to recover
" a possession, as all assizes, writs of ayel, besayel, and cosinage. In the right, which
'* are to recover a possession mixed with the right. And both these may either be of a posses-
" sion or right in himself, or descended from his ancestors, which we call ancestral. Real
" actions in the right, are either founded on the right, or for the mere rigiit." Finch's Law,
257, 258. Note — The part referred to in the first Institute in support of the doctrine of the
text, vix. 1 Inst. 164. is not at all referable to it, nor is the editor aware, that it is warranted
by any passage in that book,] ||See Black, Com. b. 3. c. 10.|1

ITie law always distinguished between a right of entry and a Booth, 99.
naked right to the land itself; and therefore there were different ^o- Ent. 182.
remedies. To recover the naked right, the law gave only a writ * * '
of right; and in this action, the defendant at his election might
put himself upon his country or wage battle. But, when the
disseisee had a right of entry, it was presumed that the disseisin
was fresh and recent ; and therefore the trial was coram paribus
airtis. But, if the disseisee did not come till the heir was
seated in the possession, and had paid relief to the lord, then the
entry of the disseisee was taken away, and his title became
doubtful ; and then they appealed to Providence in such deci-
sions ; and if any freemen would, with his own body, defend the

E 3 ' title

S4>

ACTIONS IN GENERAL.

Booth, 177.

179.

||See Roscoe

on Ileal Ac-

tions.ll

Booth, 175.
S Inst. 289.

F.N. B. 191.

Booth, 175.
e Inst. 153.
B Black. Com.
C. 10. 181.

F.N.B.191.

221.

Booth, 175,
176. 200.
3 Black. Com.
185.

Glanv. c. 7.

§17.

Fleta, 214,

215.

Vide Assize.

So the writ of
jQuod ei dcfor-
c£?af which was
given by a sta-
tute passed in

F. N. B. 220.
Vide head of
Ejectment,
3 Black. Com,
«. 11. SCO.

title of the possessor, tlie demandant was obliged to find a cham-
pion to enter the lists with him.

But to recover the right of possession, the ancient way was
by writ of entry. Where the process was by summons grand
cape before appearance, and petit cape afterwards, as in the writ
of right, and the general issue was disseisivit vel non disseisivit;
and this issue was tried by a jury, because when the disseisin was
fresh, they did not put it upon the hazard of a battle, as they
did in those cases where the long possession had made the right
doubtful.

But in the writ of entry they recovered no'damages ; for that
such writ only demanded the freehold, and was not mixed with
the personalty ; and therefore to recover the profits which are
merely personal, they had an action of trespass, which was the
proper remedy for the damages sustained,

There were anciently only three sorts of writs o^ entry ; one was
against the disseisor himself; the other was against his feoffee,
which was called the 'writ of entry in the per; the third was after
a second alienation, which was called a *writ of entry in the pei'
and cui; but the statute of Marlb. cap. 30. gave a writ of entry
in the post, which did not lie at common law against an alienee
at a third hand.

And as a man might have brought such writ of entiy of his
own disseisin, so' he might have brought it for the disseisin of his
father, or he might have brought it for a disseisin done to his
grandfather, which was called a writ of ayel, or a disseisin done
to his great-grandfather, which was called a writ of hesayel, or
any collateral cousins, that were more remote that brothers and
sisters, uncles and aunts, nephews or nieces ; and this was called
a writ of cosinage.

But because the process in a writ of entiy became tedious,
when such actions were removed out of the lord's court into that
of the king, and thereby the process w'hich issued from three
weeks to three weeks in the lord's court, was depending so many
several terms in the king's court, therefore the assize was in-
vented, which was in the nature of a commission to put the
disseisee in possession by trial at one assizes ; and this was so
sudden and immediate a remedy, that the writ of entry became
obsolete; and therefore when the assize was the usual remedy,
the writ of entry began to be called a inTit of entiy in the nature
of an assize.

There were likewise other remedies, as the formedoti in re-
mainder and reverter, and a formedon in descender, which were
given by the statute de donis, which created estates-tail.

the same year with the statute de donis, vis, 13 E. I. c. 4. and occasioned by it.

But the proceedings of these real actions being dilatory and
expensive, and in many cases concluding the party upon one
trial, a more commodious method was contrived to dispute the
title to lands, which began in the reign of Hemy the Seventh in
this manner ; by forming a term for years, and then the lessees

bring-

(A) Of the different Kinds of Actions, 5^

bringing an ejectment to recover the term, and thereby to assert
the title of the lessor of the plaintiff: before this time, if a termor
for years, who only claimed as a bailiff to the freeholder, had
been ousted of his possession, he had only a remedy to recover
damages in ejectment, and could not recover the term itself (a);
but in the reign of Heni-y the Seventh, the courts of equity having Jenk.Cent.
obliged such wrong-doer to a specific restitution, the courts of law p- 67. See
likewise gave an habere facias possessionem to recover the term i7i ^n^^^?\ *"
specie. {a)1\e term

itself was recoverable only by covenant against the lessor. Fitz. Eject. 2 P 6. R. 2. F. N. B.
145. M. So early as the reign of Edivard the Fourth it was said by Fairfax in argument, that
the plaintiff in ejections firmcB should recover possession of his term, as he would in a
quare ejecit infra, ierminiim. 7 E. 4. 6. b.

Personal actions are ex contractu, or those founded on con-
tract, as debt, which is to recover the thing in mimero; or detinue,
which is to recover the same in specie; or (if it cannot be had) its
value, and also damages for the detention; and actions of acctw^w^,
covenant, assjwipsit, guatiium ?neruit, quantum valebat, and annuity.

Or ex delicto, as trespasses founded on force, which are tres- ||(*) There are

passes vi et armis; or upon fraud, which are actions upon the "i^"y actions

n\ L ^ ^ on the case

<^ase.(6) ^ which are not

founded on frmtd, as actions for injuries to incorporeal hereditaments and rights, for injuries
to reputation by libel and slander, for injuries arising from negligent acts of the defendant
himself and of his servants, and for various breaches of legal duty. See further, as to the dis-
tinction between actions of trespass, and trespass on the case, tit. Trespass {A), YoLYll.i
and see next page.j|

Therefore if a man gets the goods or chattels of another by
lawful means, as by bailment, borrowing, or pledging, he cannot
have an action of trespass, but must bring detinue or trove?; be-
cause the party had not violated his possession.

So, where a man comes to buy goods, and they agree upon a
price and a day for the payment, and the buyer takes them away,
trover does not lie, but an assumpsit for the money, because the
property was changed by a lawful bargain.

If I borrow a horse to go to Dover, and go to other places, the Roll. Rep. its.
owner may have an action on the case against me, for exceeding
the purposes of the loan : for so far it is a secret and fallacious
abuse of his property ; but no general action o( trespass, because
it is not an open and violent invasion of it.

Where the act is lawful (c), as the fixing of a spout, and 8 Mod. 272.
the consequence is injurious, the remedy is by case, and not 2Ld. Raym.
trespass. 1399. Forteso.

* 212. 1 btra.

634. 11(c) The lawfulness or unlawfulness of the act is not the criterion between the action
of trespass and on the case. Sec 2 Black. R. 894. 3 Wils. 499. Scott v. Shepherd ; where
instances are put by Blackstonc J. in which trespass lies for the consequences of a lawful act,
and where case may be brought for the consequences of an unlawful one. The distinction is
between direct or immediate injuries on the one hand, and mediate or consequential injuries on
the other. Trespass never lay for the latter. Ibid. And eee tit. Trespass (A), Vol. Vll.; and
the cases there. ||

E 4 (B) In

56 ACTIONS IN GENERAL

(B) In what Cases an Action will lie, and for whom,
and against whom.

TT is clear, that for all injuries done to a man's person, repu-
tation, or property, he shall have an action, and that for
every right he is to have a remedy ; for want of right and wanfe.
of remedy are the same thing. *

Co.Litt. 145. It is also agreed, that where a person has several remedies, he.
Stile, 4. jf^jjy choose which he pleases; but he cannot devise or lay hold

on any but those prescribed by the laws of his country ; for if
this were allowed, it would be constituting as many actions as
there are men, which would be highly inconvenient.

But in this the great difficulty is, when a man shall be said to
have suffered an injury, or to have such a right as will entitle him
to an action. And here the rules established by that society, of
which he is a member, must govern ; and therefore, though a
man has a right, yet if he be barred by the statute of limitations,
he can have no remedy.
Yelv. 196. jSo, if I promise by word only to 'convey lands, or to give

BrownMii f?oods without delivering possession, or, if I promise to build a
6 Co. 18 Roil, house without consideration (a), <^c. though by the laws of nature
Abr. 9. these promises are binding, yet no action lies ; for without deed

(a) But, if a ^^iW sealed and executed, or without consideration, no property
dertakcs'to"' ^^ altered ; and every such promise is esteemed, in the eye of the
build a house l^^j to be nudum pactum wide non oritur actio.

for me, and does it ill, an actim on the case lies against him. Kelw. 78. Roll. Abr. 9. So, if
a carpenter promises to repair my house before such a day, and does not do it, by which the
house falls, an action on the case lies. Roll. Abr. 9. but for this vide AssunrpsU and Action 07i
the Case.

'^M* t^*^' *^^' ^* ^ cases where there may be damnum absque injuria^ the
Noy°i84. pa^ty can have no action; as if a school be set up in the same

town where an ancient school has been time out of mind, by

which the old school receives damage, yet no action lies.
rIiII A! ^Vo7 ^°' *^ ^ retain a master in my house to instruct ray children,

though this may be to the damage of the common master, yet

no action lies.
Norris v. [If \ throw out windows in my house which overlook my

itoyic, ^^v*'* neighbour's house, and break in upon that privacy which he be-
The case of* ^^'"^ enjoyed, yet no action lies.

Clierrington v. Abney, 2 Vern. 646. was cited in the argument, but the court thought it de-
served no attention. See the note to this case in Mr. Raitbby's valuable edition of Vernon.

_, , ~ No action lies for the fees of a counsel, or physician ; they

Black. Com* ... ^ . j i j ^ j

28. Chorley ^^'"S g^^en as a mere gratuity.
V. Bolcot, 4 Term R. 317. 2 Atk. 332.

Russell v. The The parties to civil suits are, individuals, who must be parti-
st" R^°"' ^"l^i'ly ^^^sd, bodies corporate, and persons ^^e^a^/ incorporated,
667. (6) Such rendered liable to be sued, and capable of suing by the pro-
are the visions of particular acts of parliament, [b) The inhabitants of
statutes of a county or district, unless so embodied, cannot be called upon
haeraBd cry, ^^ answer crviliter for an injury sustained in consequence of any

breach

(13) In -wJhal Cases cm Action mil lie, ^x, 57

breadi of their public duty ; for collectively, and qua inhabit-
ants, they are not otherwise objects of civil jurisdiction.]

As the lavi^ grants redress for all injuries, and gives a remedy Co.Litt. 128.
for every kind of right, so it is open to all kinds of persons,
and none are excluded from bringing an action, except on
account of their crimes or their country ; as men attainted of trea-
son or felony, popish recusants, persons outlawed or excom-
municated, convict in apramunire, or alien enemies.

A man that hath a special and limited property in goods, as a sBulst. sii."
carrier that hath goods delivered to him, a sherift'who hath Sid. 438. Mod.
levied goods, a bailee who hath goods in his keeping, Si-c. shall so. 2 Sand. 47.
have actions against strangers who take them away, because y^Z '/^^'
they are answerable in damages to the absolute owner. sTermR. 594.

;||See tit. Trespass (C). Trover (C), Vol.VII.||

So, a man who has cause of action agamst two, may bring it Cro. Jac. is.
against which he pleases : as, if A. takes the goods of C., and B.
takes them from A., C. shall have his action against A. or B, at
his election, because both damnified C. in their taking.

So, if two of the sheep of A. have been lost, and one of them Alleyn, 5.

• XT A

is found again, and the shepherd of A. affirms it to be one of ^ T"'^"r"]i

them, whereupon A. pays for the feeding of it, and causes it to ^^j.^ jq{' g^ q]

be shorn and marked with his own mark, and after the shepherd,

knowing this to be the sheep of A.^ falsely and fraudulently

affirms to the bailiff of the manor, to which waif and stray

belong, that the said sheep is a stray, whereupon the said

bailiff' seizes it, Src, A. may have an action against his shepherd,

for that by his false practice he hath created a trouble, disgrace, /

and damage to him ; and though he hath good cause of action

against the bailiff j yet this will not excuse the shepherd.

II So, if^. positively state to the commander of a pressgang Flewster v.
that B. is liable to the impress service, who in truth is not so, *^°y'^'
and B. in consequence is impressed, A. may be sued in trespass ^nj ggg ' '
and false imprisonment by B. Alt'ter, it seems, if A. had only e Term R.
said he beliexjed B. was liable. || 315.

So, if one slander my title, whereby I am wrongfully dis- Alleyn, s.
turbed in my possession, though I have remedy against the tres- 1 "y/ico kf '^
passer, yet I may have an action against him who caused the gEast i.it'
disturbance. was held that

it is not suffi-
cient to prove a mere wrongful act of a third party as the consequence of the slander ; for the
plaintiff may have his remedy against him. The damage must be the legal and natural con-
fiequence of the slander; and see Cro. Jac. 471. 2 Bos. & Pull. £84. ; and tit. Slander {C)^
Vol. VII., where sec the cases as to slander of title,||

If there are several proprietors of a ship which hath usually Carth. 58.

transported goods for hire, and a master placed therein by the ^°^°" ^"|^

part-owners, who hath 60/. wages for every voyage from London g galk. 440

to T.y and J. S. without making any contract with the part- pi. i, 5 Lev.

owners, and none of them being present, delivers certain goods 258. 3 Mod.

on board to the master, to be carried for hire from London to ^21.8. C.

7\ and the ship safely arrives there, but the goods are spoiled Vern. 297

througli the neglect of the master, an action lies against the 298. 465.'

part-

^ ACTIONS IN GENERAL.

2 Vem.643. part-owners; for tlious;h the master is chargeable in respect of
8 Mod. 89. iiijj wages, so are the j^roprietors in respect of the freight, at the
sfr^sos''^' election of the plaintiff.

But Qucere whether all the part-owners are not to be sued; bnt clearly if they are not, it must
be pleaded in abatement. Stra. 55.3. 822. 2 Black. R, 947. ||It is settled that if the action in
sucli case be broniiiit in asjsnnijmt, all the i)art-owners must be joined, or the non-joinder may
be pleaded in abatement, but it cannot be otherwise objected to. If the action be shaped in
tort against the defendants as common carriers, according to the custom of the realm, then it
seems the non-joinder of some parties cannot be objected to at all. See 2 New R. 454.
12 East, 89. 452. 2 Marsh. 485. 3 Brod. & Bing. 54. But if the defendants are not common
carriers, and the action is, in fact, founded on the contract to convey the goods, then, though
the form of action be in tort, still it is substantially an action of contract, and the non-joinder
of some parties may be pleaded in abatement. Idid. ; and see ante, Abatemenit, and Abbott
on Shipping, 95, (5th edit.}{|

M d Id' l'"^" attainted person is liable to civil suits; but he ought not

case Post. ^^ ^e charged without leave of the court, or of a judge. ||
Cr. L. 61. Co. Entr. 246. a. b. Cro. Eliz. 516. Co. Entr. 248. 2 Anders. 58. Moor. 753.

3 Inst. 215.

sCo. 87. but n'^HE distinction herein, with respect to real actions, depends

for this wrfe q^ the different kinds of writs; for all original writs are of

Owen 11 ^^^ sorts, viz. breve nominatum et innominatum. The first con-

Kelw.\o5. tains the time, place, and demand, very particularly; and

Dyer, 145. therefore in such writ several lands by several titles cannot be

2Brownl. 274. demanded in the same writ. The other contains only a general

complaint, without expressing time, damages, S^'c. as the writ of

trespass quare clausum freight^ Sfc. and therefore several lands

coming to the demandant by several titles, may be demanded in

such writ.

Cro. Car. 20. As to personal actions, the difference arises from the above-

-'^' v*^i"''„.» mentioned division of personal actions, viz. such as are ex con-

566. Keb. 847. ^ ^ , , ^ i t . r-ii ,,i c

Bro. Joinder tractti, and sucn as are ex delicto, or founded on a toit ; tlieretore

in Action, 97. debt on an obligation and on a mutuaUis may be joined, because

139. (a) 1 he wanted by the authority given by the general words of the writ.

tni6 reason ^ , ^ ^ ..

whv actions So, debt and detinue may be joined in the same writ, because

may or may there are writs in the register, in which they are both comprised
not be joined, in the same writ. So, debt upon a lease and for clothes, they
IS not the being in the words of the same writ. But debt and account, or
of the defend- ^^^^ f^nd trespass (a) cannot be joined.

nnt's pleas; for if that were the reason, debt upon an obligation, to which the plea is non
at factum, and on a mutuatus, nil debet, could not be joined : therefore the true reason arises
from the difference of the process, and the fines paid on taking out the original ; for in debt
the old process was summons, attachment, and distress, and on taking out the original a.
fine was paid to the king, which was in proportion to the sum demanded; but in trespass the
process was a capias, because the man that had committed a tort might be supposed to fly
from justice; and in this action the court set a fine on him in proportion to hii offence, and
levied it by a capiaiur. Gilb. Hist. C.P. 6.

8 Co. 87. In personal actions several wrongs or trespasses may be joined,

"Tev 9- because they may be comprised in the same writ, and so may

Raym. 233. several actions, on the case, where the case is of the same kind ;

as an action for a fraud on the delivery of the goods, and on the r/g^ ^^^ jj{-_

warranty of the same goods, being both on the contract. So, ficulty as to

against a common carrier on the custom of the realm, and trover what counts

may be ioined, because botii on the tort, it being a violation of ™^>; be joined
^i_ / ^ ^ a 1- ii, u / \ 1" the some

the custom not to deliver the charge, [a) declaration

hath at length met with an easy solution : any counts that admit of the same plea^ and are
followed by the same judgment, may be included in the same declaration ; but counts which re-
quire a different plea, or receive a different judgment, cannot be joined ; and yet the cause of
action comprized in such counts may in both cases be the same. Thus, a count against a
carrier on the custom of the realm and one in trover may be joined, because the plea and the
judgment proper to both are the same ; but, instead of the count upon the custom of the
realm, let a count \7. assumpsit be substituted against the carrier, and trover cannot be joined
with it ; because the plea to each is different. Brown v. Dixon, 1 Terra R. 576. Mast v. Good-
son, 5 Wils. 354. Dickon v. Clifton, 2 Wils. 319.] IJIn extending the rule beyond what the
cases cited warrant, the above note is not accurate, for there are cases where counts may be
joined, although the plea is different ; thus, debt on bond and on a mutuatus, and debt on bond
and on judgment, may clearly be joined. And even taken only affirmatively, the rule is not univer-
sally true, that where the plea is the same and the judgment the same the actions may be joined ;
for this is the case with the actions of trespass, and trespass on the case : the plea is the same,
and the judgment in each is for damages and costs; and though in general the judgment in
trespass is quod capiatur, and in case, quod sit in misericordia, yet sometimes there is an entry
of a capiatur in case as well as in trespass. SeeTidd.Prac.il. And yet they cannot, in
general, be joined. 2 Will. Saiind. 117. c; and note (c) by the last learned editors.||

But actions founded upon a tort and upon a contract cannot be 5 Lev. loi.

joined, as ass7tmpsit and trover against a carrier ; for though these ^^^- ^^^* ■^^•

come under the general head of actions on the case, yet they are j^, jyj^j _*

more distinct cases than debt and account (6), which cannot be SeeLd.Ray'm.

joined. 38. Salk. lo.

3 Salk. 204.
5 Mod. 85. Comb. 332. {b) Bro. Joinder in Action, 97- ||But if the carrier be sued in case
upon the custom of the realm a count in trover may be joined. Brown v. Dixon, I Term
R. 277.11

If trover and assumpsit are joined in one action, and upon and ^ Lev. 99.
guilty the jury quoad the trover find for the defendant, and quoad ^^^ *"j.
the assumpsit for the plaintiff, yet he shall not have judgment ; for
these cannot be joined in the same action, and the severance by
the jury will not help it, the declaration being naught at first.

One action will lie for entering the house of the plaintiff, break- Alleyn, 9.
ing his chests, and carrying away his goods, and for beating his Stile, 43. 202.
servant p^ quod servitium amisit. ^_ ' al™'f.^e .

Hand see Ditcham v. Bond, 2 Maul. & S. 456. ace.||

yAnd so also for entering his house and debauching his Worsland
daughter per quod servitium amisit, |] v. Walton,

2 New R. 476.

If in an action upon the case the plaintiff declares, that whereas Cro. Car. 20.
accommodassit to the defendant a gelding ad cquitand. ah L. usque ^.^^ *"^
£., ct ibidem salvo deliberand. to the plaintiff, the defendant r^\ Yiut the
intending to deceive the plaintiff, rid upon the said gelding from plaintilFhad
L. to E. and E. unto L. again, and by that riding so much judgment,
abused the saitl horse, that he became of little value; and though ^^'"? ^^^^^
the plaintiff at E. demanded a re-delivery of the said gelding, yet „^^ Hobart
the defendant refused, and yet doth refuse to deliver him, and the defendant
hath converted the said gelding to his own use; this declaration might have de-
is not good (c), because it contains distinct matters, for part is '""'"red for

'^ ^ ' r 1 J the doubleness

founded

ACTIONS IN GENERAL.

tton.

Orton V.
Butler, 5 Barn,
& A.652.;
and see
1 New R. 43.
6 East, 3.33.
Brill V. Neele,
3 Barn. & A.
208.

Hill,
Brownl. 86.
Cro. Jac. 68.
Moor, 914.
Noy, 3. S. C.

of the declara- founded upon the contract, and part upon the torty which are
several causes of action.

II And so where a count stated that the defendant had received
to plaintiff's use a certain sum of money to be paid by defendant
to plaintiff on request, and that the defendant did not pay on
request, and converted the money to his own use, the count was
held bad on demurrer, it not being, either in form or substance,
a count in trover. A count stating that defendant was indebted
to plaintiff for work and labour, and being indebted, that he
undertook and promised to pay, <^c. whereby an action hath
accrued, Sfc. is not a good count in debt, and tuunot be joined
with counts in debt.||
Hob. 249. ^^ ejectment and assault and battery were joined in one writ,

s'^cT'and ^^^ "*^'' ff^'^ty pleaded, and a verdict and entire damages given
Winch held for the plaintiff"; and it seems to have been aided after verdict,
the writ

naught, but the damages being found severally, the plaintiff released those for the battery, and
had judgment for the ejectment.

Yelv. 65. Where one hath a right to recover in the same kind of action,

Champernoon though he derives his right from different titles, yet being con-
joined in him, he may recover in one action : as if in debt upon
2 & 3 E. 6. c. 13. for not setting forth tythes, though the plaintiff
shews, that by prescription the rector of A. hath had two parts,
andlhe vicar of J. the third part of the tythes there, and that the
said rector and vicar, by several leases, did demise to the plain-
tiff^ whereby he became pt'oprietarius of the said tythes, and the
defendant sowed, Sfc. this action is well brought; for though the
vicar and parson could not join, because they claim severally by
divided rights, yet when both titles are conjoined in one person,
the matter of the tide is also conjoined; and this being a per-
sonal action and founded upon a wrong, it is sufficient to shew
generally, that the plaintiff isjt>7??fl;/-m or propnctarius of the tithes,
without saying by what tide.

If A. being seised of a third part of a messuage, ^'C. in fee,
demises the same to B. for years, who assigns to C, and A. by
bargain and sale enrolled conveys his reversion to D. and his
heirs, who was then seised of another third part in fee, and
afterwards the said Z). leases his third part also to the said C.
for years, and dies ; and his heir by bargain and sale enrolled
conveys the reversion of the said two third parts to^. and his heirs,
after which waste is done ; E. (a) may bring one action of waste
upon these several leases, for that the interest neither of the
theassignment terms nor of the inheritance was severed or divided to several,
in one and ^"^ ^^^ ^" °"^ person at the time when the waste was done.
the same thin<». Pt^f Popliam Ch. Just. Vide head of Waste.

Cro. Jac. 329. If in covenant the plaintiff shews that A. was seised in fee of
Pyot and Lady one messuage, and possessed of another for a certain term of

'^^^ 1 • 1111 t t r* •% r*

years yet endurmg, and let both to the defendant for a less term
of years, and that the defendant did covenant to repair, S^x., and
shews that A. by one deed did grant to the plaintiff the reversion
in fee, and by another the reversion for years, ^c, and that after

the

Poph. 24, 25.
Haydock v.
Warn ford,
Cro. Eliz. 290.
Owen, 11.
S.C.

(rt) And the
rather because

St. John. Lev
110. S.C.
cited.

the houses were out of repair, S^c. this action is well brought;
for as upon several leases or upon several grants of a reversion
one action of vk^aste lies, so for the same reason one writ of cove-
nant will lie.

But one cannot in the same action join a demand against one Hob. 88. Her-
in his own right, and a demand on him as representative of renden and
another ; as if in assumpsit against an administrator, the plaintiff 558"g'^*p S '
declares upon a sale of goods to the intestate for 200/. and upon this wVit- head
another sale to the defendant himself for 27/., and that upon of Executors
account the defendant was found indebted to the plaintiff' in '^"^ Admms-
these sums, and promised, Sfc. the declaration is naught, for the '" '"^*^ ^'
charge being: in several manors, viz. in his own right, and as
administrator, it ought to have been by several actions.

[Where the same persons are assignees of two bankrupts, Hancock
under separate commissions, they cannot join in the same action and others,
a joint debt due to both the bankrupts, with separate debts due jja-f^ar^i ^'
to each. ^ 3 Term r! 433.

But where the same persons were assignees o? A. and B. and Streatfield
likewise assignees of C, and they declared as such for a joint de- and others, as-
mand due to all the bankrupts, such declaration was holden signees, v. Hal-
good upon a motion in arrest of judgment.] ^ ^^' ^ ""^

II But if ^. 5. and C. are appointed assignees under three Ray v. Davies,
separate commissions against three bankrupts, they cannot sue 2 Moo. 3,
as if they were joint assignees of the three bankrupts, or it is a
ground of nonsuit.

Assignees under a joint commission against A. and B.^ in suing Stonehouse v.

on a separate contract made with A. may describe themselves , ^'^' ^\^r.
11 1 • r ^ • 1 "^ • r, I, 3 Camp. 599.

generally as the assignees 01 A., without nammg Jo.\\ Harvey v.

Morgan, 2 Stark. 17.

Several persons may join in an action where their interest is ^(^^ this vide

joint; as if the several cattle of A. and J5. are distrained, and head of Jo?M^

C, in consideration of 10/. to him paid by A. and J5., assumes i5g j^q]] '

and promises to them to proc.ire the cattle to be re-delivered to Abr.51. S. C.
them, if they are not re-delivered accordingly, one joint action
lies, for the consideration is entire and cannot be divided.

So, if A. hath one mill and B. another in the same manor, 2 Lev. 27.

which they have used to repair, and time out of mind all the Litheley and

grain which was ground and spent in the houses of the tenants ^?^^,'^°";

of the said manor, and was not ground at one of the said mills, 2Saund^ii5

hath always, and ought to be ground at the other, and C. a Vent. lei.

tenant of the said manor, grinds at another mill, ^c. A. and B. S. C. agreed

may join in one action against C, for the damage is entire to Pf ^"^'f"^ '^""
\ /u 4.1, • -11 o » & riai7i; but

both their mills. because the

plaintiffs had declared that all the grain ought to be ground at those two mills, or one of them,
which might be, if all ought to be ground at one of the mills and nothing at the other, for
their expedition they prayed a nil cap. per billam.

II So also certain persons, dippers of the wells at Tonhridge^ Wellerv.
duly chosen by the homage of the Court Baron, and approved ^^l*
by the lords according to the terms of a private act of ^^j ^^^ ^^'*-
parliament, were held entitled to maintain a joint action i Will.

against

ACTIONS IN GENERAL.

Saimd. 125. against the defendant for exercising the business of a dipper,

2/rf. 116. not being duly chosen and approved according to the act; for

though each dipper received gratuities for his separate use, yet

they were all jointly concerned in interest as against a stranger

disturbing them in their employment.

Townsend v. So a herald and a pursuivant at arms may maintain a joint

Neal, 2 Camp, action for work and labour in making out a pedigree, both having

*^°' been on duty when the order was given, although one of them

was applied to by the defendant.

But where two parties agreed with defendant to assist him
with their horses, and they were to give in their accounts sepa-
rately, and each assisted him with three horses, it was held
that the contracts were separate, and the parties could not sue
jointly. II

If within the parish of A. there is a custom for the parishioners
yearly to elect two persons to be churchwardens there, and ac-
cording to the said custom B. and C\ are elected, but the surro-
gate of the bishop refuses to admit and swear them into the said
office ; upon which they bring a mandamus, and he falsely returns
a custom for the vicar to choose one churchwarden, and that
therefore he cannot admit both the said parties, but is ready to
admit one of them ; they may join in an action for this false re-
turn, for the niandajmis and whole prosecution thereof was joint,
and this is no office of profit, nor action brought for that, but
for the unjust return.

So, if the registrar of the bishop refuses to register a licence of
a chapel for a conventicle, according to 1 W. & M. c. 18. and
upon a mandamus to do it makes a false return, several of the
inhabitants may join in one action, against him.

But, if one man calls two other men thieves, and shews in
certain of what, ^c. they shall not {a) join in one action against
him ; for the wrong doer to one is no wrong to the other,
(a) So in false imprisonment. Dyer, 1 9.

Smith V.
Taylor,
aChitt. 142.

3 Lev. S62.
Ward et al.
V. Brampston.

3 Lev. 365.
Vide 12 Mod.
349. 571.

Dyer, 19.

Gouldsb. 76.
S. P. Cro. Car.
512. S. P.

Kelw. 52.
Fitz. Joinder
in Action, 17.
Reg. 105.
Owen, 106.

Cooke v.
Batchelor,
3 Bos. & Pull.

Barratt v.
Collins,
10 Moo. R.
446.

Dyer, 351. Q.

So, in assault and battery ; for the battery done to one cannot
be the same as that done to the other ; and one battery may
hurt more than the other.

l|However, if slander is spoken of two partners respecting their
joint trade, they may have a joint action.
150.; and see 2 Will. Saund. 116. a. 116.b.

Where two plaintiffs jointly sued the defendant for a malicious
arrest, alleging as special damage a joint injury from the wrong-
ful imprisonment, and also a joint expense thereby incurred by
both, the court ordered the judgment to be arrested, since the
injury from wrongful imprisonment could not be a joint damage.
But it seems that on the court observing that the jury had only
found damages for the joint expense, they ordered the postea to
be amended. ||

If a man holds several lands of several lords by heriot custom,
and to defraud them of their heriots makes a fraudulent gift of all

his

his beasts heriotable, all the lords may join in one action upon the
ISEIiz. c. 5.

If two joint owners of a sum of money are robbed upon the Dyer, 570.
highway, they may join in one action against the hundred
in whicli, 4^c. otherwise, if the sums are several, and several
properties.

\\A. B. and C. having been appointed assignees of a bankrupt, Brand v.

and acted as such, A. and B. pay each half of the solicitor's bill. Boulcott,

A. and B. cannot maintain a joint action against C for his pro- ^ jl"*^- '^ ;""•
... . , ,•' , . ° ^1 ^ 2.j5. ; and see

portion or the sum paid; each must sue him separately. Graham v.

Robertson, 2 Term II. 282. Kelby v. Steel, 5 Esp. Ca. 194.

But where A. B. and C. having dissolved partnership, and C- Osborne v.

after such dissolution drew bills in the partnership name in -£.'^^\,). .

favour of Z).; upon which Z). brought his action against^. i5. and .,„j sJe " '

C, and C. having pleaded his bankruptcy, Z). entered a nolle ioEast,4i8.

prosequi as to him, and recovered judgment against A. and B.j ' Carr. & P.

which judgment was satisfied by their attorney, who advanced 1^'^f "' ^
part of the money for them on their Joint credit^ and borrowed
the rest on ihe\vjoi7it credit, it was held that the sum so paid in
satisfaction of the judgment might be recovered by A. and B. in
a joint action against C. It would have been otherwise if each
had contributed his share to the attorney to pay the demand.

The several members of a club associated for the purpose of Everett v.

buying coals and dividing them in proportions amongst them- 1'i"dall,
selves, cannot maintain separate actions for penalties against the sp. i69.
seller. I]

If A. delivers goods to B. to deliver over to C, and B. does i Bulst. 68.

not deliver them over accordingly, but converts them to his own Hiird..32i.

use, either A. or C. may have an action against 5., but both shall said that th^

not have an action ; but he who first begins his action shall go could not both

on with the same. join.

If A. is seised in fee of the reversion of a close expectant upon 5 Lev. 209.

a term for years, and B. is possessed of another close adjoining Bidlesford and

thereto, between wiiich closes there runs a rivulet, and B. stops Vn 3,4,

it, per quod the close of A. is surrounded, so that the timber- q^^, Jesser v!

trees, Sfc. become rotten ; A. in respect of the prejudice to the Gifford.

reversion, may have one action, and the termor in respect of the llSee Knight

possession, and of the shade, shelter, S^c. may have another action, T'n:^^ '' „ n
and a satisfaction given to the one is no bar to the other. °"

One action will not lie against several men for speaking the Palm. 3x3.

same words ; for the words of the one are not the words of the Adjudged

other, and can no more produce a joint action, than their words "P°" mot'on

1 . u • I .. u after a verdict

and tongues can be said to be one. ^-^j^. pi^intift'

Cro. Jac. 647. S. C. adjudged. Style, 244. S. P. 2 Burr. 984. S. P. Bulst. 15. S. P. but
there said, that it was otherwise in the spiritual court, tor that one libel may be against
several persons. 1| Action against husband and wife for words spoken by wife, and action against
husband only for words spoken by him, cannot be consolidated. Swithen v. Vincent, 2 Wils. 227.;
and see 1 Chitty on Plead. 64. 204., and Vol. I. tit. Baron and FemcJ^

But, if two men procure another to be indicted falsely for a Latch. 262.

comiuoii barretor, he may liave an action upon the case against So,iftwocon-

•' *■ - ° V spire to mam-

64.

ACTIONS IN GENERAL.

t ' a 't d '^^"^ ^^^^ ' though ill strictness the procurement of one is not
one only ^ives the procurement of the other, (a)

money. Bro. Joinder in Action, 47. Fitz. Error, 31. Fitz. Maintenance, 15. So in trespass.
Latch, 262. Vide head of Trespass. So, one decks tanltim lies against all the jurors who
take money, for they all give but one verdict, and are but one jury. Bro. Joinder in Action,
5. 47. 100. 108. Fitz. Dedet tantum, 1. 4. 6. (a) It is in the nature of a conspiracy. It is one
jamt, entire act.

Schuidam v. [] Where there are two or more bailiffs, S^-c. of a borough, a

Bunniss, joint action will lie against them under the stat. of 3 Geo. 3. c. 1 5.

for refusing inspection of the books and papers wherein is entered
the admission of freemen, though the words of the statute are in
the singular number, " mayor, or bailiffj S^-c" for the breach of
trust in one is a breach of trust in both, they being in law but
one officer.]

II Where a landlord demised to three persons jointly, and two
of them without his assent assigned their interest to the third, and
the plaintiff's goods being on the premises were distrained by
the landlord for rent; it was held, that the plaintiff might sue the
three persons jointly for money paid by him to redeem the goods
from the distress, for all the three were liable to the landlord by
covenant to pay the rent.||

[One action, it seems, will lie against all the coroners of a
county for a false return to a capias utlagatum.

Where two partners contract to pay a certain sum of money
equally out of their private cash to a third person, they must be
jointly sued upon this contract, for it is joint.]

II Two candidates at a county election are jointly liable to
the sheriff for the expenses of the election, if they have jointly
promised to pay ; but if they have not jointly promised, they must
be sued separately under the stat. 18 Geo. 2. c. 18. § 7.

Where a party of several persons dine together at a tavern
they are jointly liable for the whole expense, and not merely
each for his own share. But the officers of a regimental mess
are only separately liable, each for his own share.

Cowp. 192.

Exall V.
Partridge,
8 Term R.

308. S.C.
3 Esp. 8.

Freem. 191.

Byers v.
Dobev, 1 H.
Blac.236.

Wathen v.

Sandys,

2 Camp. 640.

Where goods were ordered by one of two chapelwardens, for
the use of the chapel, it was held that the chapelwarden giving
the order might be sued separately without joining his brother

Forster v.

Taylor,

3 Camp. 49.

Browne v.

Doyle,

3 Camp. 51.

Shaw V. His

lop, 4 Dow.

&Ry.241.;

and see 8 Moo. " -jgn

20. iBing. '«araen.

201. 6 Dow. & Ry. 122.

Carnev.Legh, Where several actions were brought against several members

6 Barn. & C. ^f ^ mining partnership for the same debt, the defendant in one
action having paid the debt and costs in that action, the court
stayed the procedings in the other actions without costs.

The same plaintiff may bring several actions against several
parties, all liable to him in respect of the same injui'y, where he
does not obtain "adequate redress in the action against the party
first sued. ||

A man cannot declare against one defendant for an assault and

judged. llAnd battery, and against the other for taking away his goods ; be-

Alcxander^' ^^"^6 the trespasses are of several natures, and against several

5CamD.35.11 persons, (i)

^b^ Ana are several distinct causes of action.

124.

Morris v.
Robinson,
3 Barn. & C.
196. 5 Dow.
& Ry. 35.

Stile, 1 53. ad-

ACTIONS LOCAL AND TRANSITORY.

If A. leases for years to B. and C. rendering rent, and C Palm, ms.
assigns his moiety to D. and after rent is arrear, A. may bring
one action of debt for the rent against B. and D. for the rever-
sion remains entire.

ACTIONS LOCAL AND TRANSITORY.

""^ I -"/^-'f T^"

I^RIGINALLY all actions were tried in the proper counties
in which they arose, pursuant to the maxim, vici7n mcinofum
facta jyrccsumuntur scire: this created no inconveniency, for all
men being anciently in decenna^ they were easily come at, the
decenna being responsible for their appearance. But, when the
custom of the decennary began to wear off, men used to fly from
their creditors, and this begot the distinction between local and
transitory actions; the first relating to lands, which must be tried
where the lands lie ; the other, a debt or duty adhering to the
person wherever he fled. Hence men omitted to date their con-
tracts from any certain place, and began their obligations with
noverint universi. When this distinction was established, the
licence it gave was soon abused to a great degree ; for plaintiffs
would lay their actions far from the place where the fact was done ;
and the defendants, for fear of being outlawed, where necessitated
to carry their witnesses into that county, how far soever remote
from the place where the cause of action arose.

l|To redress this abuse, and to compel the suing out of all writs
arising upon contract in the very county where the contract
arose, it was ordained by the statute of 6 R. 2. c. 2. that if the
writ was of one county, and the plaintiff" declared of another, the
writ should be quashed. But, this not expressly forbidding the
writ to be sued in a foreign county, the statute of 4- H. 4. c. 18.
directed all attornies to be sworn that they would make no suit
in a " foreign county." And the court rules of 15 J^liz. and
A. D. 1630. made it highly penal for attornies to transgress this
statute.

Soon after the statute of H. 4. a practice began of pleading in
abatement of the writ the impropriety of its venue, even betbre
the })laintiff^ had declared. At first in the reign of H. 5. the
courts examined the plaintiff" on oath as to the truth of his venue :
but soon after they allowed the defendant to traverse the venue,
and to try the traverse by the country. But this practice being
subject to much delay, the judges introduced the present method
of changing the venue upon motion, upon the equity of the sta-
tutes of R. 2. and H. 4. Which Lord Holt says began in the
time of James I. And among the fees of the King's Bench found

Vol. I. F by

7 Co. 1. Gilb.
Hist, C. P. 89.

Black. R.

1032.

Rastall tit.
Debt, 184. b.
Fitzh. Abr. tit.
Briefe, 18.

Salk. 670.

60 ACTIONS LOCAL AND TRANSITORY.

by a jury under the king's commission 1630, one is, " for every
" rule to alter a visne." Tyre's Jus. Filiz. 231. The form of
the rule and affidavit are also stated in &yl, Pr. Reg. (edit. 1657.)
331., as established in 23 Car. 1.

An affidavit was necessary, because the motion succeeded, and
was equivalent, to a plea in abatement ; and these are called the
common rule and common affidavit in 16 Car. 2. 1 Sid. 185.;
though the practice did not universally prevail till after the sta-
tute of jeofails 1 6 & 1 7 Car. 2. c. 8. Before that it was usual to
wait till after trial and verdict, and then arrest the judgment for
want of a proper venue. But the statute having abolished that
practice, the mode of changing the venue by motion and affidavit
began universally to prevail.

Yet as it would be hard to conclude the plaintiff by the single
affidavit of the defendant, he is at liberty to aver that the cause
of action arose in the county where the venue is laid, and to go
to trial on that fact at the same time that the merits are tried by
undertaking to give material evidence in that county. This is
equivalent to joining issue, (as in Fitzherbert before cited,) that
Gilb. H.C.P. the cause of action arose in the first county. And if the plain-
*•*• tiff fails in proving it, he must be nonsuited at the trial; which

has in this case the same effect as quashing the writ by a judg-
ment on a plea in abatement. ||

And here we shall consider,

(A) What Actions are Local and Transitory.

(B) In what Cases the Court will change the Venue.

(A) What Actions are Local or Transitory.

That all A LL actions real or mixed, as trespasses, quare clausum fregit,

actions on pe- ejectmenU *waste. Sec. must be laid in the county where the

nal statutes i i t / \ ^

must be laid 1^"^*^ he. {a)

in the proper county, vide Action qui tain, letter (C). Co. Lit. 282. 6 Mod. 222. (a) If not
laid so, it is cause of demurrer. 2 Black. R. 1070. ||But advantage can be taken of it only
by demurrer ; for it is aided after verdict by the statute of 16 & 17 Car. 2. c. 8. Mayor, &c.
of London v. Cole, 7 Term R. 583., and see Willes, 431. Not, however, in the case of an
ejectment, for the sheriff of one county cannot deliver the possession of land in another. If
the declaration do not set out the parcels (as is now often the case), it is necessary to set out
the indenture on oyer in order to raise the objection. ||

Cro. Car. So, an action of debt for rent, ||or covenant for rent or not

^^^ 'rh""?^* repairing, 8^c.,^ against an assignee of a term on the privity of
V. Cornwall estate is local, and will lie nowhere but in that county where
1 Wils, 1*65! the lands are.
JCarth. 182, 185. Stevenson v. Lambard, 2 East, 580.|1

s Mod. 537. g So, also, the assignee of the reversion must sue the assignee

Cartb ^s? of the term in the county where the land lies. And so also, as

1 Salk.8o. i-o the assignee of the term suing the assignee of the reversion;

5 Rep. 17. a. for

(A) WItat Aciions at^e Local or Transitory. wf.

for the statute transfers the privity of contract to the assignee of
the term, in the same manner as the lessor had it; and the lessor
must sue in such case where the land lies, and be sued there. ||

So, where A. granted a rent-charge to B. and C. for their Hob. 37. Pine
lives, and the lands out of which it issued came to the defendant ^- Countess of
after the death of A., and the plaintiff, as executor of the sur- '^^^ ^'^'
vivor of the grantees, brought debt for arrears incurred in their
life-time, and laid his action in the county where the lands lay ;
on appHcation of the defendants to have it tried elsewhere,
suggesting the plaintiff's power and interest in that county;
it was holden a local action, and not triable elsewhere.

A.f as assignee of a reversion, brought covenant against the Carth. 182
assignee of the lessee, on an express covenant between the lessor Damer and
and the lessee, for payment of rent reserved out of lands which Barker. Stilk.
lay in IrclandL and which was made payable in London. On ^^.'^P , ^J.^

I ^ xT_ • • T • o y • '' 1111 1 1 5 Mod. 336.

plea to the jurisdiction or the court, it was held, that though ghow. 191.
such action may be maintained here by the lessor against the S. C. 6 Mod.
lessee (a), yet that by the assignment the privity of contract was 194- S. C.
destroyed; and there being nothing but a privity of estate ^Jtted^tobe"
between the two assignees, it made the action local. good law,

there being no privity of contract remaining ; and there is no difference between debt and
covenant where the action is by lessor against lessee, &c. {a) The assignee of the reversion
may maintain debt or covenant upon the statute 52 H. 8. cap. 34. against the lessee ; <per
Holt C. J. 6 Mod. 194. for the pnvity of contract is transferred to the grantee by the statute.
Carth. 183. i Saund. 238. S. P. 240. S.P. ||See the notes to this case in Will. Saunders,
(5th ed.)]| 3 Lev. 154. 1 Wils. 165. l|So also may the lessee bring covenant against the
assignee of the reversion in any county by virtue of the statute. Thursby v. Plant, 1 Will.
Saund. 258.|i

II Whenever the action is brought upon the contract itself it Bulwer's case'

is transitory ; therefore the lessor may bring debt or covenant J „%' |' ^' .
- • ^ .1. 1 111 '' ^ • 11 -1 WiU.Saund.

against the lessee, and the lessee covenant against the lessor m 241. e.

any county.

An action of debt for use and occupation is not local. || Egler v. Mars-

don, 5 Taunt. 25.

But where the lessor brought debt against the lessee, and 6 Mod. 194.
declared on a demise of lands which lay in Jamaica^ on plea to yat^^'^Salk
the jurisdiction of the court, and objection, that if the defendant 65i. p.si.
had any good local plea, he was hereby deprived of it ; the S. C.
court held, that this being on the privity of contract, was a (*)2 Stra. 776.
transitory action {h\ and might be laid any where; and that if a ^'b 82. pl"l9.
foreign issue arose which was local, it might be tried where the (c)'For thin
action was laid; and for that purpose there may be a suggestion mde 6 Co. 48.
entered on the roll, that such a place in such a county is next 7 Co. 26.
adjacent (c) ; and it may be tried here by a jury from that place, ^*^"*" ^^'
according to the laws of that country : and upon nil debet pleaded,
the laws of that country may be given in evidence.

If a declaration contains matters lying in two counties that Cro.Eliz.64«,
join, it shall be tried by both counties, on a venire directed to IJAs to an
the sheriffs of both counties, who are to summon six of each ^f^}^ *'" .f ";
^°"" V • see St. 7. R. 2.

c. 10. Co. Litt. 154 a. F.N. B. Iso a., and Z5 H. 6. so. a-lj
F 2 II Where

68 ACTIONS LOCAL AND TRANSITORY.

Biilwer's case, || Where the action is founded upon two things done in severs
7 Co. 2. a. counties, and both are material or traversable, and the one
f*^*' ^ li ^^^'^' without the other doth not maintain the action ; there the plaintiff
Mayor &c. "^^y ^^i"'"© l^'s action in which of the counties he will.H
of Loiulon V. Co!e, 7 Term II. 583. Pope v. Davis, 2 Taunt. 252.; and see Cro. Eliz. 646*
Sed vide 3 Barn. & C. 700. 4 Barn. & A. 179.

Latch. 262. An action of debl ag-ainst the executor of a lessee, in the

271. .J Co. 24. detinet for arrears in the testator's lifetime, may be brought any
"^m°^-^"'k' where; but where it is in the debet and detinet for rent accrued
det'mct ^" ^'^^ executor's time, it must be where the land lies, (a)

against an executor for rent accrued in his own time may also be laid any where j for he is
chari^d on the privity of contract, and is only liable to the extent of assets. 1 Sid. 266.
2 Lev, 80. 1 Will. Saund. 1. note 1. and 241. c. notes, and cases there cited.jl

Co. Lit. 282. All personal actions, as deht^ detinue, assaidt, deceit, trover and

Debitumetcon- conversion, account, Sfc. may be brought in any county, and laid
mdliusloci 2 ^^ ^"7 P^'^^e ; and the defendant cannot traverse it, or be allowed
Inst. 231. to say, that the cause of action accrued in another county or

7 Co. 3. different place, except in the case of an officer of justice, who

may plead a special justification.
Griffith V. [An action against the sheriff for a false return is transitory ;

Walker, 1 for that which is false is universally so.

\Vlls.556. "^

Gregson v. The assignee of a bail-bond may bring an action upon it,

Heather, either in the county where it is taken, or in that where it is J

2St.-a.727.Ld. assigned. J

Kaym. 1455. ° 1

B.C. \

Mayor of Ber- An action for breach of customs of a town is local: the aver-'

wick V. Lwart, ment of an immaterial fact will not in such case warrant the
2 Black. R. , . . „ , ^ .

1068. laying the venue out or the proper county.] I

b. 6 Mo j. 228 "^^ action may be brought on a contract or matter which

2 Ld. Raym. ' arose beyond sea ; as, if A. enters into a bond to B. in any
1043. 2 Salk. foreign country, and the bond bears date in no place, B. may
^•''^- P'-^- bring his action where he pleases, and allege that the bond was
" L(I Rav-in "i^de in any place in England ; but if there be a place mentioned,
1212. ii'Mod. ^s Bourdeana: in France, then shall he allege that the bond was
51. pi. 21. made in quodam loco vocat. Bourdeaux in France, (to wit) in
Cowp. 177. Islington in the county of Middlesex, and from thence the jury

shall come.
Bayley on ||In declaring on foreign bills, though it is usual to state that

fl i ir^ ^^^ ^^^^y were drawn at the place where they bear date, adding the
V. Morris venue under a videlicet, yet this does not seem necessary. 1|

3 Camp. 504. ; see 2 Barn. & A. 501. 1 Barn. & C. 16.

Dutch W. L [An action may be maintained in England, to recover money
MoserYs^tra ^°^''^°^^'*''d at Amsterdam, and covenanted to be paid in bank
612. 2Ld.''' there. «

Kaym. 1352. S- C. '

F^hf'a" ^' Trespass and false imprisonment will lie in this country fo •

Cowp'. 161. ^" ^"j"0' of that nature, committed abroad in an English set ■

tlement.
Cowp. 180. It was formerly thought that an action arising abroad, though

(B) In "what Cases the Cornet uill change the Vctiue. 09

in its nature local, as trespass quare claimimfregit, might be main-
tained in this country, if the satisfaction soug/it wej-e mereli/ per-
sonal and for damages, and there would be otherwise a failure of Doulson v.
justice : but that opinion hath been over-ruled, bein<y found to Matthews, 4.
be inconsistent with the settled and acknowledged distinctions f'enn II. so.-,
between actions local and transitory.] ^^g '

II Although an action for diverting the water of a navigation be Company of

in its nature confessedly local, yet it is not necessary to give a Proprietors

local description to the nuisance; and, therefore, if it be doubtful ^^j ip^gj^^'^-'^

whether the place where the navigation is stated to lie be laid in Navijration

the declaration as avenue or as local description, it will be v. Donalas,

referred merely to venue, and need not be proved to be at such 2 Eii^t, 497.
place; but it is sufficient if it be at any other place within the
county..||

(B) In what Cases the Court will change the Venue.

T^HE defendant cannot by his plea oblige the plaintiff to lay his («) Lntw.

action in a different county from that in which he brought 1437. Co. '
it, unless the matter pleaded be local {a) ; for in transitory actions J/^-n^if f ; ^ 1.
he must move the court on affidavit (6), that if the plaintiff hath \-^^ j^ ^^l '' ^"
any cause of action, such cause accrued in the county of, 4*^. cessary, be-
and not where the plaintiff hath laid it, Sfc. and such motion cause the u!o-
must be made before issue joined (c), for by joining issue, he *'"" ^"^"
agrees with the plaintiff as to the manner of bringing the action : wasefrjivilcnt
and though the court seldom refuse on such affidavit to change to a plea in
the venue, yet if, before or after the motion made, the plaintiff abatement.
will enter into a rule to offer no evidence but what arises in the " }^ . ' .
county where he has laid his action {d), the cause will be tried there, niust state
jmsitivefy that " the cause of action (if any) arose in A. (the county to which it is prt"«vt'tl (o
*' change tiie venue) and not in 13. (the county where it is laid in the declaration) or elsc-
*• where out of A." This is the established <brni with which the courts exact a sirict com-
pliance. Cole V. Goring, Barnes, 477. Belshaw v. Porter, /6/(i. 478. 4 B^irr. 2452. Alien
V. Griffiths, 3 Term R. 495. ||And by a late rule of li. R. it must be drawn up " ou rcadin«'
" the declaration," 11 East, 275. I'Marsh. 243. 1 Chitt. R. 57. 534.|| It hath been ques-
tioned, though it is frequently done, whether the venue can properly be changed into Wales:
certain it is, from the terms of the affidavit, that it cannot be directly changed into the next
English county, though the process may be afterwards awarded into it. 4 Burr. 2452.
Dougl. 262. IJBut now since the latitat is holden to run into Wales, it has become the com-
mon practice to change the vemie from an Englisli to a Welsh county. 2 Stra. 1270. 2 Black
R. 962. 6 East, 355. li \y\ the case of a libel dispersed in several counties, the vemie cannot
be changed, because the affidavit cannot be made in the prescribed form, the |)ublication of
the libel being co-extensive with its circulation. Pinkney v. Collins, 1 TermR. 571. Clissold
V. Clissold, Id. 647. S. P. ||l Brod. & B. 299-11 B"* if the printing and publishing were both
in the same English county, or if the libel were written here, and sent abroad, there is then
only one Englisli county in which the cause of action arose. Freeman v. Norris, 3 Term R.
300. Metcalfe v. Markham, Td. 652, One only of several defendants may make the afTidavit.
Box V. Reed. Barnes, 482. Where it appears on the face of the declaration, that the cause of
action is /oc«/, no affidavit is necessary. Mayor of Leicester v. Green, Id. 492. snpra (A',
(r) It has been received afterwards, 1 Term R. 781. It may be changed after an order for
time to plead, though upon the terms of pleading issuably ; but not after an order for time to
plead, upon the terms of pleading issuably, and taking short notice of trial at the first sitti?i<»s
in London or Miildlescv^ because t/icre a trial would be lost. Petyt v. Berkley, Cowp; 510.
Himter v. Gray, Barnes, 49.3. S. P. UShipley v. Cooper, 7 Term R. 698. Wilson v. Harris,
•2 Bos. & Pull. 320. Talmash v. Penner, 3 Bos. & Pull. 12. It cannot be changed at the

F 3 instance

70 ACTIONS LOCAL AND TRANSITORY.

instance of the defendant after plea pleaded, even thoujr^ he afterwards obtain leave to with-
draw his plea, and plead it de novo with a notice of set-ofF. Palmer v. Turner, Tidd's Pr. 528.
Ed. 2.|| A judge's order for an imparlance is no bar to it. Blackstock v. Payne, Barnes, 487.
Nor is the putting in a plea after a rule to shew cause any waver of it. Herbert v. Flower,
Id. 492. (rf) Or undertake to give material evidence in the county where laid. Sid. 404.
442. [But such undertaking is indispensable.] ||Guard v. Hodge, 10 East, 32. Clarke t.
Reed, 1 N. R.310.|| [The want of it cannot be supplied by an affidavit that the cause of
action arose where laid. French v. Coppinger, 1 H. Black. R. 216. The undertaking, how-
ever, is satisfied by very slight local evidence, or by proof that the cause of action arose
abroad. Watkins v. Towers, 2 Term R. 275. Gerard v. De Roebuck, 1 H. Black R 280.]
||M'Ciare v. M'Keand, 2 Taunt. 197. The performance of it may indeed be dispensed with
where the plea and issue joined are such as to render the evidence irrelevant; for it does not
apply to collateral issues, but is confined to the matters stated in the declaration. Cockerell
V. Chamberlayne, 1 Taunt. 518. Soulsby, Assignee, &c. v. Lea, 3 Taunt. 86. If the plaintiff'
can shew that part of the cause of action arose in another county than that where originally
laid, the nde for changing it will be discharged. Cailland v. Champion, 7 Term R. 205.
Collins V. Jacob, 3 Bos. & Pull. 579. Hope v. Bennett, 2 New R. 397. But, where the cause
of action substantially arose in a county at a great distance from that in which the venue was
laid, and all the witnesses resided in that county ; the court changed the venue to it on the
defendant's agreeing to admit a fact, which in point of form arose in the original county.
Holmes V. Wainwright, 3 East, 329.|| [Evidence merely that the plaintiiTs witnesses reside
in the county where he has laid the action is not sufficient. 2 Black. R. 1031. After the
venue hath been changed, the court have refused to bring it back upon an affidavit that the
witnesses live in Scotland, and will not come farther than Carlisle. Fogoe v. Gale, 1 Wils.
162.]

2 Mod. 215. But though the court, on application, seldom refuse to change
Gilb. Hist. the venzie, yet there are cases in which the judges have refused;
i^ R° ^^ where a peer of the realm brings an action of scandalum mag-

954. 1 1* Mod. ^^°^^^* *h^ court will not change the venue, because a scandal
9. 12 Mod. raised on a peer reflects on .him through the whole kingdom.
J 21. 401. 420. Barnes, 343. 2 Stra. 807. 2 Ld. Raym, 1418. Andr. 198. Bamardist. K. B. 60.

1 Lev. 56. S.P. For the king himself is party to the suit; but in ray Lord Shaftsbury\ case,
who brought scandalum magnatum, and laid it in London, the venue was changed. Vent. 5«4.
Q Jones, 192. But note that was by reason of the great influence he had in the city ; and the
established doctrine is, that the venue cannot be changed in an action of scandtdum magnatum.

2 Salk. 668. pi. 3. 1 Vern. 439. It was refused by B. R. in Ld. Sandwich and MiUer, in
Eatter Term 1773.

Vide head of A Serjeant at law, barrister, attorney, or other privileged
Privilege. 2 person, whose attendance is necessary at Westminsta-'hall, may
f^o^'Yg^^'^' ]^y ^^^ action in Middlesex, though the cause of action accrued
2 Show. R. ^^ another county; and the court, on the usual affidavit, will not
176. pi. 172. change the venue.

242^. pi. 239. S. p. Though the plaintiff*, who was a barrister, had discontinued his practice
for some time before. [But Quare of this ? On motion by Mr. Spelman to re-change the
^ffi"r^ .*° ^Jiddlesex on the ground of his being a barrister, the court obliged him to make
* ni^^v p **' ^^' ^P^^""^" ^^^ plaintiff" and Mr. Spelman the barrister were the same person.
£ Black. R. 1067. 1 Black. R. 19, An attorney does not lose his privilege to change or
retam the venue by residing in the country. 2 Black. R. 1065.]

s^Ld'^Ra^ m ?"^' ^^ ^ privileged person be sued, and the action brought

1053! Bisse against him in the right county, his privilege will not entitle him
V. Harcourt. to have it tried in Middlesex.

S Salk. 668. pi- 1. Andr. 381. 4 Burr. 2027- 3 Term R. 573. Contr. 2 Stra. 1049. Dolben J.
remembered a cause where the venue was altered, though an attorney was plaintiff", because
the matter arose, and all the witnesses lived, in remote parts. Carth. 126. So, where the
plaintiff was an attorney, but had not declared in person, but by N. C. his attorney. Barnes,
479. bo, where plaintiff" sued defendant by capias, and not by attachment of privilege. Pract.
n^' ^ r,' '^l?* ^5P- * ^^** P""**^'- C. p. 132. So. where he sued by original. Barnes, 484.
Rep. & Cai. Pract. C. P. I4fi. Pract. Reg. C. P. 420.

nAnd

(B^ In ivJiai Case^ tJie Court 'will cluinge lite Venue. 71

g And if the privileged person lay his venue in London, or any 2 9alk. 668.
other county than Middlesex, he has no privilege to retain it. "^ Taunt. 146.

And the privilege does not extend to actions by an attorney Tidd. 6O8.
in aider droit.\\ (^'^ ^^')

So, if an attorney lays his action in London, the court will Vent. 47. Cas.
change the venue on the usual affidavit ; for by not laying it in Temp. Holt,

Middlesex (a), he seems regardless of his privilege, and is to be J\^V^ 1

.J ,^ '' p r t) » (a) In order

considered as a person at large. to prove the

venue was not laid in Middlesex, a copy of the declaration was produced, by which it was
said, it appeared the venzie was laid in London ; but the court said an affidavit ought to be
annexed, that it may appear to be a true copy, and that they did not require this affidavit but
in the case of an attorney.

II The venue will not be changed to any of the four northern 3 Black. Com.

counties, previously to the spring circuit, because the assizes there ^^'** ^ j

are nolden only once a-year at the tune 01 the summer circuit. ^^^ p '

Nor will it be changed into a county palatine but on the praddely and
terms of not assigning error on the want of an original ; and others v. Rip-
therefore, in C. B., one of several defendants cannot be per- pon, 5 Taunt,
mitted to remove it thither, because it is not competent to the ^ T:, ' .^"^^^*^
court in that case to lay the other defendants under those terms. |j ^^^ "7 Taunt.

466. 4Maul. &S. 235.

If material evidence may be given in two counties, the plaintiff ^ g^^ij, gg^
may elect to bring his action in which he pleases ; as, if A. draws pi, 4. Comb.
a bill of exchange in Bristol, payable in London, the action 84. Lutw. 21s.
accrues by the refusal to pay the money in London, and there- "^ ^°- ^"'"
fore the plaintiff not obliged to change the venue. fioEa^t 34

The like law in penal actions. 2 Term R. 238.]

II So, where the venue had been changed by the defendant 2 Barn. & A.
from London to Staffordshire, on the usual affidavit that the ^'8* 1 Chitt,
cause of action arose in the latter county, and not elsewhere, the ' ** '
Court of King's Bench would not bring it back to London on an
affidavit that the^cause of action arose partly in Staffordshire and
partly in Worcestershire, and on the plaintiff's undertaking to
give material evidence in one or other of those counties, par-
ticularly as no special facts were stated to shew that the defend-
ant's affidavit was not correct. And mere hardship and delay in
being obliged to try a cause at Lancaster, when all the plaintifi''s
witnesses reside in London, is no ground for bringing back the !^q, "
venue to the latter place, unless the defendant be under terms
to take short notice of trial in London, and has undertaken not
to assign for error the want of an original writ.U

So, where an assumpsit was brought for goods sold and de- Vent, 344*
livered, and the action laid in London, and a motion was made
to change the vemie upon affidavit that the sale was in Kent -, but
it appearing that the delivery was in London, the court held that
where the matter consists of two parts in several counties, the
plaintiff shall have his election.

So, an action against a lighterman for not delivering goods 2 Salk. 670.
was laid in London, whither they were to be carried; it was jjl'/couKc'to
moved to change the venue, because the damages and neglect change the
were in Kent. Sed non allocatur ; for the neglect is transitory, venue ia aa

F i and

ACTIONS LOCAL AND TRANSITORY.

action of
escape; •per
Holt C. J,

10 East, 52.;
and see
2Chitt.R.417.

Ibid,

aiid not material where it was ; and the court will never change
a venue for a carrier, which is the same case.

II The venue may be changed in an action of crim. con. on the
usual affidavit.

So in an action of assault.

6 Taunt. 754. "^^ ^^ ^® ^' ^' ^" ^ penal action.
Scd vide 1 Sid. 287.

4 Taunt. 729. So, in case for overturning the plaintiff in a stage coach, it
may be changed to the county where the accident happened. 1|
[But where the cause of action arises in two counties, the

Shirley v. Col-
lis, 2 6lack. R.
940.

2 Mod. 228.
That the
court will not
change the
venue in an

court will not change it to a third.]

If the action be grounded on a specialty, the court will not
change the venue ; for not being dated at any particular place, it
may be presumed to be omitted, that it may charge the defendant
at any place.

action of covenant. Lev. 307. ||See 2 Chitt. 419. 1 M'Clel. & Y. 212. Nor in assumpsit on

an award. 2 Bos. & Pull. 353. 3 Barn. «& C. 9. 1 1. Or charter-party of affreightment. 7 Taunt.

306. 1 Moo. 54. Sed vide. 4 Bing. 39. Unless some special ground be laid. See Tidd. 604.

(9th edit.)|j

[Nor will they change the venue in debt for rent on a parol
demise of lands in one county, and the action laid in another.

166.

But where an action of debt for rent by the lessor against the
original lessee was brought in London^ and the lands lay in
Gloucestershire; on affidavit made that the defendant would
plead a special plea, whereby the title of the estate would come
in question, the court ordered the venue to be changed into
Glouccstersh ire.

Duplessis r.
Chalk, Stra.
878. Fitzgib
Meritt's case,
1 Freom. 260.

Foster v. Tay-
lor, \ Term R.
781.

8 East, 268. ;
but see
2 Chitt. R.
419.

Watt t.
Daniel, 1 Bos.
& Pull. 425.

Barnes, 480.

It is a general rule not to change the venue in actions upon
specialties; yet it has been done upon certain terms imposed
upon the defendant, on a suggestion that both the plaintiff's and
defendant's witnesses resided in the county to which it was
prayed it might be changed; but several similar applications
have been rejected.]

II In covenant on a lease for diverting water from the mill, a
view being proper to be had the venue was changed to the
county where the premises lay, though most of the plaintifPs
witnesses resided in the county where the venue was laid.

And in a late cat;e the Court of Common Pleas refused to
change the venue in an action on a deed to the county where
it was executed, on the ground of the defendant's witnesses
living there; it not appearing from the pleadings to be necessary
to produce many witnesses from that county, and there being
reason to suppose that a fair trial could not be had there. 1|

[The Court of Common Pleas refuse to change the vetiue in an

485. 485. 487. action on a bill of exchange or promissory note (a), where the
sBIaok.R. cause of action is confined to the bill or note only; but the

practice

ACTIONS QUI TAM. JS

practice of the Court of King's Bench in this respect seems to be ,„.,

different. (6) ^ _ 4i.*SayR. 7.

Andr. 63. HThey have however done it where the defendant's affidavit disclosed the number
of witnesses, and shewed that a serious inconvenience would arise from bringing them into the
county where the venue was laid : a mere statement that all the defendant's witnesses live in
the county to which it is moved to change it will not suffice. Evans v. Weaver, 1 Bos, &
Pull. 20. And where a view was necessary, they have done it, though most of the plaintiff's
witnesses resided in the county where the venue was laid. Hodinott v. Cox, 8 East, 267.H
(a) They consider these in the nature of specialties. \\{b) It should seem to be the same where
the note is not negotiable, Orme v. Almay, cited in 2 Bos. & Pull. 5.95. And the practice of
the Court of King's Bench seems now to be the same. See Tidd. 604. (9th edit.) ; and 2 Chitt.
R. 418.11

II It would seem that the courts will neither change the venue Whitburn v,
in an action on an award, even though the declaration contains ^^p^il'^R^^'
the common counts, nor oblige the plaintiff to undertake to
confine his evidence to the count upon the award, |1

[Though the plaintiff cannot regularly move to change the Stroud v.
venue, yet he may do it in effect by moving to amend, and striking | "v' }^^:.
out the name of the one county, and inserting that of the other ; ^ Hallet
and as he may make this motion at any time, therefore where the 1 Wils. 175.
7)emie has been changed by the defendant, the court will permit Bruckshaw v.
him at any time to hrhm it back on the usual undertaking.] Hopkms,

•^ » ^ -^ Cowp. 409.

ACTIONS QUI TAM.

A CTIONS qui tarn are (a) such as are given by acts of parlia- 3 Black. Com.
ment, which impose a penalty, and create a forfeiture for I60. (a) It is
the neglect of some duty, or commission of some crime, to be called some-
recovered by action or information, at the suit of him who pro- actixm^'when^'^
secutes as well in the king's name as in his own. As most penal the penalty, or
statutes direct, that the penalty may be recovered by action or part of it, is

information, we will consider both matters together, and there- S^^en to anv
r 1 II 1 one who will

fore we shall shew, sue for the

same. In these actions or informations, the party who prosecutes has, by commencing his suit,
such an interest in the penalty, that the king cannot discharge or suspend the suit, as to the
part the plaintiff is entitled to. Vide 2 Hawk. P. C. 592. and head of Prerogative. [Penal
actions, though the judgment may in some cases be followed by legal disabilities, are considered
as civil proceedings. 1 hey are founded upon the implied contract which every one is under
by the fundamental constitution of government, to obey the directions of the legislature,
and to pay the forfeiture incurred by his disobedience to such persons as the. law recjuires.
3 Black. Com. 15P. Therefore the affirmation of a Quaker is admissible in them; Cowp.
382. and a new trial may be had after a verdict for the defendant. Wilson v, Rastall, 4 Term
R. 753.]

(A) In what Cases they lie.

(B) What ought to be the Form of them.

^C) In what Courts they may be brought, and where
laid.

(D) Of

74 ACTIONS QUI TAM.

(D) Of the Proceedings and Pleadings in such Actions
or Informations. '

(E) Of the Judgment on such Actions or Inform-
tions.

(F) In what Cases there shall be Costs.

(G) Whether the Penalty of a Penal Statute may be
compounded or granted over.

Within what time the prosecution must be on a penal statute,
vide head of " Limitation of Actions."

(A) In what Cases they lie.

Co Ent. 375. W/^HEREVER a statute prohibits a thing, as being an imme-
Lutw. 133. diate offence against the public good in genera], under a

138. Dyer, 95. certain penalty, and the penalty, or part of it, is {b) given to him
lh\\K^ '^h^' ^^^ ^^^^ ^^^^ ^^' ^'' ^"y person may bring such action or inform-
out such pe- ation, and lay his demand tain jpro domino rege quam pro seipso.
nalty be given, no private person can sue, for the whole penalty goes to the king. 2 And. 127.
2 Jones, 234. 2 Hawk. P, C. 377. [It hath been deterniinod, however, that where an informer
entitled to no part of the penalty, sues for the king and himself, the information is not void,
but the whole shall be adjudged to the king. Parker, 105. Hardr. 185. But an act which

fives a remedy only to the party grieved, is not to be considered as a penal act ; Cas. Temp,
lardw. 412. Andr. 1 1 5. S. C. Vin. Abr. tit. Robbery (U), p. 2. S. C. 2 Term R. 148. for the
king cannot discharge it, or proceed in it after the death of the party. Wood's Inst. 535.]

Vide 2 Hawk. go, where a statute prohibits or commands a thing, the doing
aC Vs' ^^ omission whereof is both an immediate damage to the party,
and also highly concerns the good of the public, the honour of
the king, ^c. the party grieved may, and, as some say, ought to
bring his action on such statute tarn pro domino rege quam pro
seipso. especially if the king be entitled to a fine.

(B) What ought to be the Form of them.

Plow 79. * ' y^ ^^ agreed, that an action or information on a public statute

4 Co. 48. Cro. need not recite the statute on which it is grounded ; whether

Eliz. 236. the offence be such only because prohibited, or be an evil in its

Cro. Car. 229. ^^^ nature; and whether it be prohibited by more than one sta-

Show. 537. ^"^^> ^^ by one only ; for the judges are bound ex officio to take

2 Hawk. P.C. notice of all public statutes.

C. 25. § 100.

For this vide But, if the prosecutor take upon him to recite the statute, and

^^^ & loi "^^^^'"'^lly vai'y from a substantial part thereof (ff), this is fatal,

H(a) Not being because it does not judicially appear to the court that there is such

bound to re- a foundation for the prosecution, as that whereon it is expressly

cite the sta- grounded.

lute, a literal

variance will be fatal. Dougl. 97. Sed vide 9 G* 4. c. 15. and tit. Pleas and Pleading (B).!|

But,

(B) What ought to be tlie Form of tliem.

7.5

C. 26. § 20.
(fl) The usual
It is the safest

Vide Hawk.
P.C. C. 26.

But, if an information contain several offences against a statute, Cro. Jac 104.
and be well laid as to some, and defective as to others, the informer ^^^' ^'"°* ^ '
may have judgment for v^^hat is well laid ; as, where the words of
the statute are fully pursued in the description of some of the
offences, and not of others ; or, where the time is in part certain,
and in part uncertain.

Also, an action or information qui tarn need not conclude contra 2 Hawk. P. C.
pacem^ or m conteviptum domini regis ; as an indictment must. c. 26. § is.

He who brings an action on a penal statute, which gives one Jones, 26i.
moiety of the forfeiture to the king, and the other to the informer, Cro. Car. 256.
may either have a writ against the defendant quod reddat domino Plow. 77.
regi e/ A. B. qui tarn, Sfc. quas eis debet," or quod reddat A. B. qui ^J^^^ ^ '
tarn, Sfc, quas ei debet ; and in either case the writ is well pursued Dal. 66.
by a declaration in the name of the plaintiff only.

But it seems doubtful whether there be any necessity that QbioEre^ Vide
either the writ or count, in any such action, do express that it 2 Hawk. P.C.
is brought by or for the king as well as the party, (a)

form of declaring is, that the party sues 'as well for the king as for himself,
method, and perhaps is necessary.

But it seems agreed, that every information must be in this
form, viz. that the informer tam po domino rege quam pro seipso . , ,

sequitu?; even where it is brought upon a statute which gives one other autho-
third of the penalty to a third person. But there is great variety rities there
in the form of such informations in other respects ; for sometimes cited,
they say, that the action accrues to the informer, to demand the
forfeiture for the king and himself; sometimes that it accrues to
the king and to the informer ; sometimes that it accrues to the
king and to the informer and to J. S. viz. where it is divided into
three parts ; sometimes they have no clause at all of this kind ;
sometimes a process is prayed to bring in the defendant to answer
the informer ; sometimes to answer as well the king as the in-
former ; and sometimes to answer concerning the premises, with-
out saying to whom.

Such information may demand what is due to the informer, 2 Hawk. P. C.
without mentioning what is due to the king. Also, if the quan- ^- 26. § 20.
tum depend on what shall be found by the jury, a blank (A) may thi blank'* i?
be left for the sum ; but if it demand more or less for the party it would not
than his due (c), it is insufficient as to him ; but even in such case be bad ?

it may be sufficient as to the king's share. (^) !^°^- ^'^^•

° Bull. Ni.

Pri. 196.

If the action be popular, i, e. such as any person may bring, Bro. Action
it may conclude ad grave damnumt without adding, of the plaintiff; ^^P"'^' ^'
because every offence, for which such action is brought, is sup- ^ 26 21 ^ ^
posed to be a general grievance to every body.

It is said that the fact is sufficiently alleged after a qjiod aim
in an action on a statute, but not in an information, (d)

rule will hold universally ? And if it must rather depend on the particular circumstances of
each case ? ||See Carth. 216. Pleas arid Pleading (B).||

Where the penalty is given for continuing such a practice for Lutw. I62.

a cer-

Show. 337.
{d)Qu. If this

ACTIONS QUI TAM.

(a) The King V. a certain time, or for not doing such an act within such a time,

1 aylor, Lent ^^^ information must be very particular in bringing the offence
assizes for ... , . ., , .•'v'^ " o

Stirry 1776. withm the time prescribed, (a)

before Mr. J, Blachlone, an information aaainst the defendant for following the business of a
tanner, not having served an apprenticeship. The evidence did not specify the time as laid
in the information ; and the prosecutor having closed his case, the judge refused to let him
supply the defect; it being a prosecution that was not to be encouraged; and directed the jury
to acquit the defendant.

2 Hawk. P. C. By the 18 Eliz. cap. 5. (b) None shall pursue against any
c.26. $22. person- on a pejial statute^ but by 'way of information^ or original

action^ except where the penalty is limited to a certain person^ &c. ;
yet popular actions in the King's Bench or Exchequer seem not
within the meaning of this statute ; for it doth not restrain the
suit to original writs, but only to original actions, and such
actions by bill are properly original ones in the courts in which
they are commenced ; and therefore it seems a reasonable con-
struction, that the meaning of the statute was only to restrain
suits commenced in inferior courts, and afterwards removed into
superior.

{hi) Made per-
petual by
27 Eliz. c. 10
and 51 Eliz.
€.5. [The
latter cases
support this
doctrine.
See Leigh
V. Kent,
3 Term R.
565. n. a.]

51 Eliz. c. 5.
§2.

Com. Dig. tit.
Action (N),
B. N. P. 195.

3 Term R.
3.58. 2 Bos. &
Pull. 581.

4 East, 385. 9

Whitehead
V. Wynn,

5 M. & S. 427.

Bun. 23C.
261. Parker,
182. 5 Anst.
871.

21 Ja. I. C.4.

|[T>Y 31 Eliz. c. 5. §2. in any declaration or information tlie
offence against any penal statute shall not be laid to be
done in any other county but where the contract or other matter
alleged to be the offence was in truth done ; and every defendant
in such action or information may traverse and allege that the
offence was not committed in the county where it is alleged,
which being tried for the defendant, or if the plaintiff be there-
upon nonsuit, then the plaintiff shall be barred in that action or
information.

This statute is still in force, and is held to extend to all actions
or informations brought by common informers upon penal sta-
tutes, 'whether made before or after 31 Eliz. And hence the
venue in all such actions and informations must be laid in the
county where the offence was committed.
East, 296. 5 Taunt. 754. 3 Maul. & S. 429.

This statute extends to offences of omission as well as com-
mission.

There is an exception, however, in the statute that it shall
not extend to any such officers of record as had in respect of
their offices theretofore lawfully used to exhibit informations
and sue upon penal laws, which exception extends to inform-
ations by the Attorney-General in the Court of Exchequer. ||

By the statute 21 Ja. 1. cap. 4. all offences against penal sta-
tutes, for which any common informer may ground any popular
action, bill, plaint, suit, or information, before justices of assize,
or nisi prius^ or of general gaol-delivery, or of oyer^ Sfc. or of
peace, Sfc. (except offences concerning recusancy or mainte-
nance,

nance, or the king's customs, or transporting gold, or silver, or
munition, or wool, or leather, Sic) shall be commenced, sued, pro-
secuted, tried, recovered, and determined by way of action, plaint,
bill, information, or indictment, before the justices of assize, of
nisiprms, of oj/«-, SfC. or of gaol-delivery, or before justices of
peace, of every county, city, borough or town corporate, or
liberty, having power to enquire of, hear, and determine the same,
within this realm of England and dominion of Wales, wherein
such offences shall be committed, in any of the courts, places of
judicature, or liberties aforesaid respectively, only at the choice
of the parties which shall commence suit or prosecute for the
same, and not elsewhere, save only in the said counties or places
usual for those counties, or any of them ; and the like process
in every poj)ular action, bill, plaint, information, or suit, shall
be as in actions of trespass vl et armis at common law ; and all
informations, actions, bills, plaints, and suits whatsoever, either
by the attorney-general, or by any other officer whatsoever, in
any of the courts of Westminster, for or concerning any the
offences aforesaid, shall be void.

And in all suits on penal statutes, the offence shall be laid in
the county where it was in truth committed; and if, on the
general issue, the offence be not proved in the same county in
which it is laid, the defendant shall be found not guilty.

And no officer shall receive, file, or enter of record, any
information, bill, plaint, count, or declaration, on the said sta-
tutes, which by this act are appointed to be heard and deter- ,
mined in their proper counties, till the informer or relator hath wThissec-
laken an oath before a judge of the court, that the offence was statute seems
not committed in any other county than where, by the inform- now to be dis-
alion, Sj-c. the same is supposed to have been committed, S^-c. the re<;arded. Sea
same oath to be there entered of record. («) tnjra.

In the construction of this statute it hath been holden, that no 2 Hawk. P. C.
action of debt or information, or other suit whatever (6), can be '^•^e. §54.
brought on any penal statute made before 21 Jac. 1. in any of the '^^) f^f'^V^'^^,^'
courts 01 Westminster-kall, tor an oiience not excepted by the 4(55. 5 Mod.
statute, and for which the offender may be prosecuted in the 425. 2 Lev.
country (c), unless such offence shall be committed in the same 204. 5 Inst,
county in which such court shall sit. And as to the objection, that ^^^; v^'L,"?,
by this restraint or suits on penal statutes to the said courts, tlie Lev. 249.
offence would become dispunishable by the offender's removing 5 Lev. 71.
from the county ; it may be (^/) answered, that he may be sued 2Keb.4oi.
to an outlawry in the same manner as in an action of trespass. ^^q' ^^^ "^P^;

Vent. 304. 2 Lev. 204. Latch. 192. Sid. 359. Ld. Raym. 370. Stra. 413. Wille'sR.654,
(«5j Jon. 193. {d) Salk. 573. pi. 24. Salk. 372. pi. 13.

IjThat the statute does not extend to offences created by j g.^2|^ ^^^
subsequent statutes. Bull. N. P.

195. 3 Maul & S. 458.

Neither this statute nor the 31 Eliz. c. 5. extends to actions by i Show. 354.
tlie party grieved. || ^"^'' ^- P*

That where a subsequent statute gives an action of debt, or ^wt per Holly

anv

78 ACTIONS QUI TAM.

it conies any other remedy, for the recovery of a penalty in any court of.

within the record generally, it so far implietlly repeals the restraint of
^['•"tute" ^ ^^ ^^'^' ^•' ^"^' consequently, leaves the informer at his liberty
[(a) The king to sue in the courts of IVestminster-hall. (a)
V. Gaul.

1 Salk. 375. Ld. Ra)ma. 370. S. C. Hick's case. 1 Salk. 373, But this was merely the
private opinion oi Holt ; and the cases here referred to have been confirmed by a subsequent
case of Harris v. Reyney, B. R.P. 1734, cited in Parker, 186.; .and the reason of the judg-
ment, as there stated, is, that the preamble speaks of offences against divers and sundry penal
laws and statutes of the reahn ; and the enacting clause of or concerning offences committed
or to be committed against any penal statute, must relate to a statute in being, for there
can be no offence against a statute which does not exist. However, the offence must be laid
within the proper county. I Salk. 573.]

Cro. Car. 119. That the statute gives no jurisdiction to the courts therein
Lit. Rep. 163. mentioned over any offences in relation to which they had none
Hut. 98. Vent, before ; and, therefore, that suits for such offences must be

?,\^ .'"•^\^'" brought into the courts oi' fVesttninster in the same manner as
(b) It IS only , r /j:\

where there is before. (6)

a concurrency of jurisdiction in the superior and inferior courts, both as to the subject viatler^
and as to the mode of proceeding, that the statute excludes the jurisdiction of the former.
Therefore a suit may be maintained in the courts at Westminster for the recovery of penalties
incurred against the statute of 1 Jac. 1. c. 22. notwithstanding a subsequent clause of that
statute, which authorizes justices of assize, of gaol-delivery, and of the peace, to enquire of the
premises, and to hear and determine the same ; the mode of proceeding under that clause
being merely by indictment or presentment. Shipman v. Henbest, 4 Term R. 109.] iJSee

1 Will. Saund, 312. a. b.jl

Keb. 106. That the statute hinders not the removal of any cause into

Jones, 195. j.j^g King's Bench by certiorarL after which it may be either tried, -l

2 Hawk. P.C. ^, • ^u 4. u • • • / \ \
c 26. §57. there or in the county by mstprius. (c) •'

Rex. V. Martel. Bull. Ni. Pri. 196. 4th edit, (c) [It is now settled, though formerly doubted,
that an appeal lies from the King's Bench to the Exchequer Chamber in a qui tarn action of
debt. This question was determined by the Exchequer Chamber, the courts of King's Bench
and Chancery having previously refused to entertain it. Lloyd v. Skutt. Dougl. 553. n.]

2 Andr. 127. Also, where a statute limits suits by an informer qui tarn to

2 H k P^ C ^^^^^' courts, yet any one may, by construction of law, exhibit
c. 26. §25. * ^" information in the Exchequer for the whole penalty for the
Parker, 182. use of the king.

Cro. Car. 316. That on the last clause of the statute it cannot be assigned
vide 4 Inst. for error, that an information, S^c. was filed without such pre- :
193 B t^' vious oath as the statute requires, for it was only directory to the
qu(^re Whe- officer, [d)

ther for want of such an oath, the court will not, on motion, set aside the process. Salk. 367.
pi. 19. Ld. Raym. 426. Carth. 503. [(rf) This oath is not necessary where the action is in
the superior courts, the statute not extending to any actions which may be brought in those
courts. Leigh qui tarn v. Kent, 3 Term R. 562. Balls qui tarn v. Atwood, 1 H. Black R. 546.]

Show. 354. That no suit by a party grieved is within the restraint of the

statute.
Gates qui tarn [Where an offence is created by a statute under a penalty, the
v.^night,^^^ penalty may be sued for in the superior courts; for the jurisdic-
tion of those courts is not to be taken away but by express words
or necessary implication. But the statute of 25 G. 3. c. 51.
having imposed penalties of 50/. and of 10/. and having enacted
that the former should be sued for in any of the courts of West-
minster, but having provided that it should be lawful for justices

3 Term R. 442.

(D) Proceedings and Pleadings in such Actions^ cj-c, 79

of the peace, S^e. to hear and determine the latter, with a power
to mitigate the penalties ; it was holden, that such proviso
ousted the jurisdiction of the superior courts as to the penalties
of 10/.]

(D) Of the Proceedings and Pleadings in such Actions
and Informations.

"OY the 18 EHz. c. 5. every informer on any penal statute shall ig Eliz. c. 5.
exhibit his suit in proper person, and pursue the same either 2 Hawk. P. C.

by himself, or by his attorney in court, and shall not use any E"^?;,^^"l'
•\ ^ I \ [(«) rherefore

deputy, (a) aa infant can-

not be a common informer, for he must sue by guardian ; Maggs v. Ellis, M. 25 G. 2. Bull.
Ni. Pri. 196. (4th edit.) and he cannot be an attorney, because he must be sworn. March 92.J

Any infoi'mer qui tarn {b), or plaintiff in a popular action (c), ny. ^^ j j^j
may be nonsuit, and thereby determine the suit, as to himself 139. Bro.
at least ; and though the king cannot be nonsuit, the attorney- Nonsuit, 68.
general may enter a nolle proseqtii to an information by the king (^) """o- ^^n-

only. Sid. 420. Salk.

21. pi. 11. [Moulton qui tarn v. Bingham. 2 Term R. 51 1. n. a. But the act of 14 G. 2. c. 17.
for judgment as in case of a nonsuit, does not extend to an information qui tarn for the king
and partV" Parker, 92.] |[It extends to qui tarn actions as well as others. Barnes, 315.
1 Wils. 325. 7 Term R. 178. 1 East, 554.1|

[Where the moiety of a penalty is given by a statute to the 4 Term R.
treasurer of a county, riding, or division, the word division does K.B. 224.459.
not apply to any small districts, or to any arbitrary divisions of /t

the county made for the convenience of the magistrates, and to *^

which separate treasurers are appointed, but must be taken in
its legal sense, and therefore an action cannot be supported in
the name of the treasurer of such districts, Sfc.']

By the 29 Eliz. c. 5. and 31 Eliz. c. 10. if any natural-born 29 Eliz. c. 5.
subject or denizen, shall be sued on any penal law in the Queeris ^"'^ ^^ ^''**
Bench, Common Pleas, or the Exchequer, where he is bailable, or ^' ^°'
by form of the court may appear by attorney, in every such case
he may, at the time contained in the first process, appear by
attorney, and not be urged to personal appearance, or to put in
bail.

If the defendant plead a special plea, he must take care to set Roll. Ren. 49.

it forth with all convenient certainty, and to answer the whole 134. Bridg.

time laid in the information ; and if he plead the general issue, * ' ^- that he

he must depend upon it, for he cannot plead together with it a f?""°* ^^S^

• ii»« ^ nis Itiw or t(iK6

special plea, either to the whole, or to part of the charge, {a) advantaoe of

a protection 2 Hawk. P. C. 390. [(d) The stat. 4 Ann. c. 16. does not extend to penal actions ;
see § 7. 2 Stra. 1044. 2 Wils. 21. 4 Term R. K. B. 701. |ll Bos. & Pull. 222. || A qui tam
information cannot be quashed upon motion. Stra. 953.]

If the defendant plead nil debet, it is safest to say expressly Co. Ent. 165.
that he owes nothing to the informer, nor to the king ; for if he ^°'^' ^^J*
only plead that he owes nothing to the informer, it may be g Lev. 375.
objected that the whole declaration is not answered. Vide Cro.

Car. 10, 11.

If there be more than one defendant, they ought not to plead 2 Hawk. P.C.

80 ACTIONS QUI TAM.

jointly, that they are not guilty, but severally, that neither they

nor any of them are guihy, S,-c.
jj^jj 218 tit seems that either nil debet^ or not guilty, is a good

lTerniR.'462. plea.]
||See 5 Bos. & Pull. lll.||

2 Hawk. P. C. ^ If the suit be grounded on the breach of a statute appearing
c. 26. § 6S. ^y matter of lecord, //// debet is not a good plea.
Cro. Eliz. 261. Wherever a suit on a penal statute may be said to be {a) de-
Roll. Rep. 49- pending, it may be pleaded in bar of a subsequent prosecution,
134. Hob. 209. ijgij^g expressly averred to be for the same offence, as it may,
the sutt shall though it be laid on a day different from that in the former ; and
be said to be it is said, that a mistake in such a plea of the day whereon such
pending, vide prior suit was commenced, will not be fatal on the issue of nul
2 Hawk. P. C. ^1^^ record, if it appear in truth to have been prior, 4^c. and if
and qucBre two informations be exhibited on the same day, they may mu-
Whetherfrom tually abate one another, because there is no priority to attach
the time of the i\iq right of suit in one informer more than in the other,
purchase or

return of the writ. Salk. 89. From the time of the purchase of the writ [The day of suing
it forth is the commencement of the suit. 3 Burr. 1425. Combe v. Pitt. IJNotice of action
has been held no commencement of it. 2 Black. R. 781.|| The plea must aver the priority of
the suit, and the very hour of its commencement may be shewn, if necessary. Jackson v.
Gisling, Stra. 1169. 5 Burr. 1425.]

Bredenquiiam [The record of a recovery in another action cannot be given
V. Harman, j^j evidence on nil debet; for if it be pleaded, the plaintiflf may
Bull Ni Pri. ^^P^y ^'"^ ^^^^ record, or that the recovery was by fraud to defeat
197. (4th ed.) a real prosecutor, which he cannot be prepared to shew upon the
general issue.

If the defendant plead a prior recovery, and the plaintiff reply
11(a) This sta- per Jraudem, and such recovery be found to be fraudulent,

tute does not ^j^g defendant is liable to two years' imprisonment by 4 H. 7.

extend to _ , » •' '■ •'

cases where ^' ^^•-1 \^}

the penalty is given to the party grieved. 1 Salk. 30. 2 Hawk. P. C. 279.||

2 Roll. Abr. I^ the defendant be within the proviso of a penal statute, he may

683. Vide take advantage of such proviso on the general fssue, in a suit on
2 Hawk. P. C. such statute ; but it hath been holden (even since the statute of
c. 26. ^69. 22 j^^ ^ P^ ^ \ ^|^g|. jf j^g have matter in his discharo;e dependinc:
that he may , ' , i i • -11°' °

take advantage Oil a subsequent statute, he must plead it specially.

of it by virtue of the statute, without pleading it specially ; but as to those matters to which
the statute doth not extend, qucere. |jlf the same act that imposes the penalty contains the
proviso of exemption, it is clear this may be shewn on the general issue. 4 Burr. 2284. 2469.
And it seems the same if a subsequent act contain the exempting clause. 1 Black. 250. ; and
see 3 Camp. 222.1| [The defendant cannot avail himself under the general issue of any
matter that goes to the jurisdiction of the Court. 4 Term R. 109.]

2 Hawk. P. C. As to replications to special pleas to informations qtd tarn in the
^' ' ' courts of Westminster-hall, they are properly made in the name of

the attorney-general only; and such replications in suits at assizes
are proper in the name of the clerk of assize only : also, replica-
tions to general issues, on such informations in the King's Bench
or Exchequer, may be in the name of the attorney-general only ;
but, generally, the plaintiff only replies in actions qui tarn; and ,
a demurrer to a plea in bar to an information qui tarn in the
informer's name only has been received.

Where-

(E) Of the Judgment on such Actions or Informations ^

Wherever a plaintiff may declare tam pro domino rege quam 2 Hawk. P.C.
pro seipso, he may continue the same form of words both In the c. 26. § 73.
joining of issue and in the venire; but is not bound to do it unless ^"^ Hawkins
the king be entided to part of the penalty, (a) qulTe^Whe-

ther he be bound to do it in this case ; for there are precedents to the contrary. The usual
form in the plaintiff's replication is, " and the plaintiff ivho sues as aforesaid, doth so likewise,
" ^c." where defendant offers issue. If the plaintiff^ then, " and of this the said A. who sues
" as aforesaid, puts hiviselfon the country, Sfc."

Where several persons are jointly charged for an offence against 2 Roll. Abr.
a statute, which in its own nature may be committed by a single Ig 59 ^"^*
person, without the concurrence of any other, some of them may
be acquitted and others found guilty; for though the words of the
information be joint, yet in judgment of law the charge is several
against each defendant; but, if one only be informed against, as
having offended oftener, or, in a higher degree than is proved,
as for having been absent from church ten months, where he has
been absent but eight; or for having ingrossed 1000 quarters of
wheat, where he has ingrossed but 100; he maybe found guilty
as to what is proved, and not guilty as to the residue, for such
offences are in the nature of trespasses, which it is sufficient to
prove for any part; but, if the offence consist in making a con-
tract contrary to the purview of a statute, as in the case of usury,
it must be proved as it is laid.

[Where an offence made penal by statute is in its nature single, Rex v. Clarke,
and cannot be severed, there, the penalty shall be only single, Cowp. 610.
though several persons may join in committing the offence. But, m° 455^^^'
where the offence is in its nature several, there every offender ^oy^ 52.
is separately liable to the penalty. Thus, impounding a distress |[See Reeve r.
in a wrong place, against the statute of 1 & 2 P. & M. c. 1 2.
though done by many, is but one act, and shall be satisfied by
one forfeiture. So, under the statute 5 Ann. c. 14. killing a
hare, though several be concerned in it, is but one offence.
But the offence against the 8 Geo. 1. c. 18. § 25. of obstructing
a custom-house officer in the execution of his duty, is several;
and every offender is separately liable to the penalties which the
act imposes.]

II The plaintiff in declaring on a penal statute must expressly Spieres v. Par-
negative the exceptions or exemptions contained in the enacting ^^'"» ^ ^^"" ^*
clause which gives the penalty, and also those contained in any pratten ^^ ^'
other clause to which the enacting clause refers; but not those 6 Term R. 559.
contained in a subsequent proviso, to which the enacting clause Steel v. Smith,
does not refer, nor those contained in a subsequent statute : in ^ ^^"•
these last cases it is for the defendant to bring himself within the
exempting proviso. ||

Pool, 4 Barn.
& C. 155.|l

&A.

(E) Of the Judgment on such Actions or Inform-
ations.

^^^HERE by statute the offender is to forfeit such a sum, to Andr. 139,
be divided into three parts, whereof one shall go to the ^tile, 329.
king, one to the informer, and the other to the poor, and to be
Vol. I. G com-

Roll. Abr.
102. 2 Keb.

ACTIONS QUI TAM.

820. 2 Andr.
128. Parker,
105. Where a
statute distri>
buting one
moiety of the

committed if he do not pay it within such a time, the judgment
may be general, that the king and informer shall recover the
whole, without mentioning how it shall be distributed, or that
the party be committed for nonpayment. But, if it mention
only that the informer shall recover, without saying any thing
penalty to the of the king, it is erroneous ; yet, if on such an information, as
the^'otheir to ^^ ^^ ^^^^' informer appear to have no right to any part, but
the poor, di- the king ought to have the whole, and the judgment be, that
rects that the the defendant forfeit the whole, and that the king shall have one
informer shall part, and the informer another, Sfc. it is erroneous only as to
[udffnfent^that '^"^^ ^^^^ clause, which distributes the forfeiture, but shall stand
the informer for the first clause, that the defendant shall forfeit the whole, {a)
Also, if there be no clause at all concerning the forfeiture, in a
conviction on a penal statute, but only a judgment quod convicius
est, it is sufficient, for the forfeiture is implied.

(a) 2 Hawk. P. C. c. 26. § 76. Adjudged Mich. 3 G. 1. [Wherever the act expresses the
amount of the penalty, or leaves it to the discretion of the magistrate, there must be a
judgment of forfeiture as well as a conviction. Rex v. Hawks, Stra. 8 58. Fitzgib. 1 24. Barnard.
K. B. 212. But where the act, as 9 Ann. c. 14. says, " That the offender shall forfeit five times
" the value" &c. all the judgment the court can give is, quod convictus est, and a new action
must be brought upon that judgment for the forfeiture. In recusancy there is no other judg-
ment. Rex V. Luckup, Stra. 1048.

and the poor
shall recover
is good.
4 Burr. 2018.

4 Burr. 2018.
Frederick v.
Lookup, qui
tarn.

5 Term R. 448.

Willan V.

Taylor,

7 Barn. & C.

111.

2 Keb. 781.
Roll. Abr. 574.
Lutw. 200.
Vent. 133.
Salk. 206. pi.
4 cont. Moor,
65. 3 Lev. 374.
2 Inst. 288.

2 Hawk. P. C.
c. 26. § 57.
Vide the au-

[A judgment in a popular action may be affirmed as to one
part, and reversed as to the other ; as, where damages and costs
were given on 9 Ann. c. 14., it was reversed as to the damages
and costs, and affirmed as to the debt.

If the jury find a general verdict with one penalty for the
plaintifi^, and he apply it to one count, he shall not be permitted
afterwards to apply it to another count, though the former were
bad in law, and the evidence would have warranted the applica-
tion of it to any other count.]

II Where the plaintiff in an action on the 9 Ann. c. 14. §2.
recovered treble the value of money lost at play, the loser not
having sued within the time prescribed by the statute, and a
writ of error was broight by the defendant, and judgment was
affirmed without costs ; it was held, that the poor of the parish
where the offence was committed were entitled to one moiety of
the sum recovered, without deducting costs. 1|

(F) In what Cases there shall be Costs.

A N informer on a popular statute shall in no case whatsoever
have his costs, unless they be expressly given him by such
statute, for the common law gives costs in no cases; and the
statute of Gloucester gives the demandant costs only in cases
wherein he shall recover his damages, which supposes some
damage to have been done to the demandant in particular, which
cannot be said in any popular action.

But, wherever a statute gives a certain penalty to the party
grieved, he is entitled to his costs by the statute of Glaucesttr, '_
which gives the demandant his costs in all cases wherein lie

shall

(F) In what Cases tfhere sJmH be Costs, 83

shall recover his damages (a) ; for otherwise it would be in rain thoritiee

for him to sue, since in many cases the costs would exceed the '^PI^' „ -.'
^j. ^ 1 Term R. 71«

P*^nalty. lliH.BIack.lO.

7 Term R.267.|| (a)Also, wherea statute, introductive of a new law, gives a remedy in a point
not remediable at the common law, but no certain penalty, the jury may consider the costs, so
as to give damages accordingly, 2 Hawk. P. C. ibid.

By the 18 Eliz. c. 5. made perpetual by 27 Eliz. c. 10. if (A) Extends
any informer or plaintiff (Z*), on a penal statute, shall willingly onlytoacora-
I delay his suit, or discontinue, or be nonsuit, or shall have the ^d^notTcra*^*
I trial or matter passed against himself therein by verdict or judg- party grieved ;
I ment of law, he shall pay to the defendant his costs, charges, yet if a party
' and damaijes, to be assigned by the court in which the suit shall g^iered brings
I i-i. ? J 0 / \ his action, and

be attempted, ^r. (c) such action

be for any oiFcnce or wrong personal, immediately supposed to be done to the plaintiflfj or

plaintiffs; or whatsoever the nature of the action may be, if the plaintiff might have costs in

case judgment should be given for him, he shall pay them on a nonsuit, or verdict against

him, by virtue of 25 H. 8. c. 15. and 4 Jac. 1. c. 3. Vide 2 Hawk. P. C- c. 26. § 59. and the

\ authorities there cited. JlMayor of Plymouth v. Werring, Willes, 440. College of Physicians

;! v. Harrison, 9 Barn. & C. 526. acc.|| [For this reason the costs of a nonsuit were awarded to

( the defendant in an action by the party grieved, on the statute of 9 G. 1. c. 22. Greetham v.

I the Inhabitants of the Hundred of Thrale, 3 Burr. 1725. That the plaintiff is in such case

I entitled to costs, see Witham v. Hill, 2 Wills. 91. and Jackson v. the Inhabitants of Calesworth,

I 1 Term R. 71. ||6 Term R. 355. 7 Term R. 267.1| though denied by Aston J. in giving judg-

: ment in the case of Wilkinson qui tarn v. Allott, Cowp. 366.] (c) And it is no objection

■• against paying the costs, that the court had no jurisdiction of the cause, or that the statute on

I which it is grounded is discontinued. 2 Keb. 106. Vide Hutt. 35.

[There is a proviso in this act, that it shall not extend to any 2 Ld. Raym.

■ officers who are used to exhibit informations; but it must appear l^-^V, •}.

on record that they are such officers, else they will be considered 117'xerm R.*

as common informers, and affidavits to the contrary will not be 367.||

admitted.

If a prosecutor qui tarn for killing game does not reply, Law qui tarn

defendant shall have costs, for this statute extends to informers T'wn"^}L*~
1 X , , T 1 Wills. 177,

on penal statutes.] Hit extends to

subsequent statutes. Willes, 392. 440.||
II It does not extend to give costs to one of several defendants, 1 Carr. & P.

who has been acquitted where a verdict has been given against ^^^' '**^*

his co-defendants. II

[A prosecutor not going on to trial shall pay costs. Cas. Temp.

3 Burr. 1304.
In an action qui tarn on the 5 Eliz. c. 4-. the plaintiff shall pay „. .

^^^^^' V.Stevens,

Ld. Raym. 1333. Jeynes qui tarn v. Stephenson, Barnes, 124.

I Where there is any reason to suspect that the defendant may Parker qui tain

. lose his costs, if the plaintiff should fail in the suit, he will be I'r^^^'u^^l^'

5 permitted to pay the issue money into court to abide the event, pjgjj ^^^ "^^^^ '

5 Whether the plaintiff can in such case be compelled to give v.Carran,2H.

^ security for the costs, is a point not yet settled, there being a Black. 27. Ficfe

j difference of opinion in this respect between the courts of West- f**; /^.f *' ,

yl minster-hall: the Courts of Common Pleas and Exchequer S.'i'g"

r^ holding the negative, whilst the affirmative is maintained by die (9th edit.)||

^j Court of King's Bench.

nl G 2 The

English qui
tain V. Cox,
Ck)wp. 522.

ACTIONS QUI TAM.

The courts have refused to stay proceedings in an action for
usury, till the costs of a nonpros in a former action by a diifereiit
plaintiff against the same defendant were paid.]

II See the next head (G).||

isEliz. c. 5.
(a) Extends
only to com-
mon infor-
mers. [But it
extends
equally to
those who sue
for the whole
penalty, as to
qui tarn infor-
mers. Cowp.
3G6.] 2 Hawk.
P. C. c. 26.
§ 77. {b) Ex-
tends as well
to subsequent
penal statutes
as to those
which were in being when it was made,

4 H. 7. c. 20.

(G) Whether the Penalty of a Penal Statute may be
compounded or granted over.

"DY the 18 Eliz. c. 5. no informer or plaintiff shall compound
or agree with any that shall offeuil(^), or sliall be surmised
to offend against any penal statute (i), for such offence com-
mitted, or pretended to be committed, but after answer made in
court to the suit, nor after answer, but by consent of the court
in which the information or suit shall be depending; on pain,
that whoever shall offend contrary to the true intent of this
statute, or shall by colour or pretence of process, or without
process, on colour of any offence against any penal law, make
any composition, or take any money, reward, or promise of
reward, for himself, or to the use of any other, without consent
of some of his majesty's courts at Westminster^ and shall be
thereof convict, shall stand in the pillory, S,-c. by the space of
two hours, and shall be disabled to sue on any popular or penal
statute, and shall forfeit 10/. S^c.

Hutt. 35. Also, it extends to the compounding of
suits commenced in courts which have no jurisdiction, as much as if they had a jurisdiction.
K^b. 106. Sid. 311.

II By 4 Hen. 7. c. 20. actions popular prosecuted by collusion
shall be no bar to those which are prosecuted with good faith,
and the defendant being lawfully condemned or attainted of covin
or collusion shall suffer imprisonment for two years. 1|

By the 21 Jac. 1. c. 3. it is declared, That all monopolies, and
all commissions, grants, licences, charters, or letters patent, of or
for the sole buying, selling, Sfc. or of any other monopolie:;, or
of power, liberty, or faculty, to dispense with, or to give licence
or toleration to do any thing against the tenor or purport of any
law, or to give or make any warrant for any such dispensation,
SfC. or to agree or compound for any forfeitures limited by any
statute; or of any grant or promise of the benefit of any such
forfeiture, before judgment thereupon, and all proclamations, Sfc.
tending to the furtherance of the same, are contrary to law, and
void : And it is enacted, That monopolies, and all such commis-
sions, S,-c. shall be examined, heard, tried, and determined by,
and according to the common laws of this realm, and not other-
wise ; hut it is provided that this act shall not extend (c) to any
warrant or privy seal from the king to the justices of either
bench, or the Exchequer, or of assize, or of oye7' or terminer and
gaol- delivery, or peace, or other justices having power to hear
and determine offences against any penal statute, to compound
for the forfeitures of any penal statutes depending in suit before

thern,

21 Jac. 1. c.3.
That this sta-
tute is in af-
firmance of
the common
law, vide
2 Hawk. P. C.
C. 26. § 80.
(r) Such jus-
tices by such
warrant can
make such
composition
for tne use of
the king only ;
per Ld. Coke,
."Inst. 178.
Bat by the
18 Eliz. supra,
they may give
leave to an
informer to
compound
with a defend-

(G) Whether the Fenalty may he compounded, <J'C.

tliem, after plea pleaded: Also it is further pr&oided. That the ant after plea
said act shall not extend to any grants, S)X. that had been granted P'^^Jed,
concerning the licensing of taverns, or selling, uttering, or ^ og Sgl [ft
retaihng wines to be spent in the house of the party selling is the rule'of
the same, or concerning the making of compositions for such the Court of

licences, so as the benefit thereof be reserved to the use of the -^'"g's Bench, 1
1 • o that where

Kmg, CfC. ^ ^ ^ they give leave

to compound, the king's half of the composition shall be paid into the hands of the master of
the crown office for the use of his majesty. 4 Burr. 1 929. The giving leave to compound is
discretional in the courts. I Stra. 167. 1 Wils. 79. 130. It hath been given after verdict for
the plaintiff". 5 Term R. 98.] ||In a later case, however, the Court of C. P. seemed to doubt
their power to give leave after verdict without the consent of the attorney-general. In all
events, they said, it was not a matter of course; circumstances must be laid before them to
satisfy them that the defendant was entitled to such an indulgence. 1 Bos. & Puil. 18.j| [If a
defendant obtain a rule to stay proceedings upon payment of a sum agreed upon between
him and the plaintiff, the court will enforce the payment of that sum by attachment.
5 Term R. 257.]

JIThe application for leave to compound a penal action must i Chitt.R.Jsi.
be made to the court in bank, and not at AVs/ Prius on the trial
of the cause.

In one case vv'here the defendant was in execution, the Court iStra. 167.
of King's Bench, on an affidavit of his poverty, gave the plaintiff
leave to compound with him.

But in the C. B. where part of the penalty goes to the king, i Taunt. 105.
the consent of the crown must be obtained before the motion for "^ i'aunt- 268.
leave to compound can be granted, whether a verdict has passed
for the plaintiff or not.

It is discretionary in the courts to give or withhold leave ; and Tidd, 557
they refused it in an action on the 25 G. 2. c. 36. for keeping a
disorderly house.

(9th edit.)
2 Black. R.
1157.; and see
2 Smith, 195.

1 Bos. & Pull.
51.

On a bonajide composition, though not on a collusive one, the
plaintiff may be allowed a reasonable sum for his costs ; and in
compounding a penal action on the post-horse act, which gives
costs to the prosecutor, the Court of Common Pleas allowed
him to receive the deficient duties not amounting to 40^., and
full costs of suit, though exceeding together the 405. paid to the
crown.

But where no costs are given to the plaintiff, as in an action 2 Taunt. 213.
on the statute of usury, the crown is entitled to a moiety of the
sum agreed to be paid to the plaintiff for his costs ; for whatever
the defendant may pay under the name of costs is considered, in
fact, as an addition to the penalty.

When leave is given to compound a qui tarn action, it is a
general rule that the king's half of the composition shall be paid
into the hands of the master of the crown office in the King's
Bench(a), or one of the prothonotaries of the Common Pleas (6),
for the use of his majesty, which is now usually done before the
rule is drawn up. And where the defendant in a qui tarn action
obtained a rule to stay proceedings on paying a sum agreed upon
between him and the plaintiff, the Court of King's Bench con-
sidered it an undertaking by him to pay that sum ; and for the

G S nonpayment

(a) R. M.
7G.5. K.B.
4 Burr. 192.0.;
and see
2 Black. R.
1154.

Black. R.
1157.

{b)2
1154.

ACTIONS ON THE CASE.

5 Dura. &
Ewt,857.

R. E. 33 G. 8.
K.B.

7 Taunt. 43.
S Marsh. 358.
8.C.

R.M. 13Jac.l
C.P.

5 Taunt 850.

nonpayment of it granted an attachment. But for preventing
any doubt in future, an order was made, that " every rule to be
drawn up for compounding any qui tarn action, do express that
the defendant doth undertake to pay the sum for which the court
has given him leave to compound such action."

So, in the Common Pleas, where a defendant, in a penal
action, obtains a rule to stay proceedings on payment of part of
the penalties, the court will grant an attachment against him for
nonpayment. And in diat court it is a rule, on compounding
informations on penal statutes, that " if the defendant, after
" composition made with the informer, do not voluntarily come
" in to answer unto the king for his fine, to be taxed and assessed
" by tlie justices of this court for his majesty's use, then a capias
" ad satisfaciendu7njinem shall be awarded against him to compel
" him thereunto; whereupon the fine being set and assessed,
" shall be presently paid in : and satisfaction being thereupon
" made, and entered by the prothonotary upon the roll of the
** said information, shall be for ever a full and final discharge of
" the defendant for the same offence."

The plaintiff, in compounding a penal action by consent,
having by mistake abandoned a good cause of action, the Court
of Conmion Pleas refused to interfere and rescind the order
made thereon. ||

ACTIONS ON THE CASE.

JT has been observed, that for every right, and for e^very
injury done a man in his person, reputation, or property, the

party hath a remedy. But this remedy he must take according
.««, «.v.. ai.- ^ ^y^ methods laid down and rules prescribed by the law ; for
tioD was never which purpose there are writs framed, and setded actions, to
brourfitbcfore; which he must apply; as debt upon a contract, trespass on a
iSsTr coming "|a";fest and open invasion of his property, S^c. But, where
■ * the law has made no provision, or, rather, where no general

action could well be framed before-hand, (the ways of injuring,

and methods of deceivmg being so various,) every person is (a)

allowed both by the common law and the st. Westm. 2. 13 E. 1.

C.24., to bnng a special action on his own case, which is a

liberal action, {b)

r^r. FiJsModl,^^^^^^ Cro.Jac.478. Roll. Abr. 108, 109. 2R0II:

o;^ the .tatSi of Jf<;,5o„' wl Y\' ^ "'• ''^r^P'' Z^'^^^^^", no action having been brought
«n uic iniuie otJUerion, it is to be presumed no act on will lie- and Pn T iff «i h ^^^ I rl

Ew mS^-^'edTor act on S^^ToTl 'e MoVf/' ^ "''f %^ thing an injury, the san.e
•dH.) (*) 2 Burrf R. ooe. 101 1^012 ' " ^^' ^^ °°*^ ^^^ *° C°- ^itt. 81. b. (I3th

These

Co. Lit. 56. a.
6 Mod. 53. 54.
(a) Nor is it
any objection
that Mich ac

to view the
huid*, to see
if any waste
waaoom-
initted, being
hindered by a
ttflUKCi from

ACTIONS ON THE CASE. 87

These actions are founded on some fraud or deceit in contracts, [They arise

or some secret iniurv to a man's right or property, and are said simply from

, „ J J oii^*/'^ tort or wron*''

to arise from a non-feasance, male-feasance, or mis-feasance. ^hgre no "'
But as this division seems too general, I shall choose the follow- breach of any
ing, as more proper to include the most material cases that fall contract is

under this head, referring to others for a more full discussion of suggested, and

, . , , .^^ 1 no forcible

several particulars relating to them. violence im-

puted to the defendant. 5 Wooddes. 167.] ||And that they lie in many cases for breaches of
duty arising out of contract, or ex quasi contractu, see Carth. 62. 2 New R. 365. 3 East, 62.
12 East, 452. 2 Marsh. 485. 3 Brod. & B. 54.1|

(A) What Persons, with respect to the Injury, may

bring an Action on the Case.

(B) Against whom such Action lies.

and herein of those Cases where a Man may be
said to suffer Damnum absque injuria,

(D) At what Time the Right of Action shall be said to

have accrued.

(E) Of Actions on the Case for Fraud and Deceit in

Contracts, on an implied or express Warranty.

(F) Of Actions on the Case for Injuries to a Man's

Person, Property, Right or Privilege : And
herein,

1. Where an Action on the Case 'will lie against Officers

and Ministers of Justice.

2. Where Case mil lie for Torts and Injuries committed

by Persons contrary to the Duty of their Trades and
Callings.

(G) Where an Action on the Case will lie for a

Nuisance, and therein of the Inconvenience of
multiplying Actions.

(H) Where an Action on the Case will lie for a Con-
spiracy, and oppressive Proceedings in Pro-
secutions and Suits at Law.

(I) Where Case will lie though the Party injured has
another Remedy.

(K) Where Case will lie though the Wrongdoer be
punishable criminally.

G 4 (A) What

gg ACTIONS ON THE CASE.

(A) What Persons, with respect to the Injury, may
bring an Action on the Case.

Bulrt. 68. T F ^. delivers goods to B. to^deliver over to C, and B. does not

Hardr.ssi. •■• deliver them over accordingly, but converts them to his own
aP. •aduid y^g^ ^jjj^gp J Qj. Q n^gy j^a^g an action against B. but both shall
thgr could not ^^^ ^^^^^ ^^ ^^^.^^^ ^^^ j^^ ^j^^^ g^.^^ ^^^^^ j^jg action shall go on

with the same.
9 Let. 909. If ^' is seised in fee of the reversion of a close, expectant

rid# « RoU. upon a term for years, and B. is possessed of another close
Abr. 55. adjoining tliereto, between which closes there runs a rivulet, and

* ^7*^ So 'if ■^* *^°P* '^ P^ ^'^^ ^'*® *^'°"^® °^ ^' ** surrounded, so that the

iTicMet »' timber-trees, <^c. become rotten, A. in respect of the prejudice

houM to B. to the reversion, and the termor, in respect of the possession,

for yfw%, and ^^^ ^^ j|^g shade, shelter, ^c. may each (a) have an action ; and

down th'rouch satisfaction given to one is no bar to the other.

the neglect of a nei<»hbour, A. may have an action for the damage to his inheritance, and B.

for that to his possession. 3 Lev. 360. But see 6 Ann. c. 31. § 6. made perpetual by 10 Ann.

c. M. §\. by which this remedy is taken away.

Provost, &c. II If the tenant, or a stranger, do a present injury to the estate

0 n"***n °^ ^'^® reversioner, the reversioner may have this action against
IbrdTlHalirt, ^»"> pending the term.||

14 East, 489. Ipackson v. Pesked, 1 Maule & S. 233. Peyton v. Mayor of London, 9 Barn.
& C. 785. J and sec 1 0 Barn, & C. 1 45. 1 Moo. & Malk. 550.1|

If a master of a ship brings an action on the case, and declares

that the ship was laden with corn in such a harbour, ready to

sail for Dantzic, and that the defendant entered and seized the

ship, and detained her, per quod impeditus et ohstructus fiiit in

viagio : this action well lies, for the master has not the property

8«Ik. 10. pi. 4. of the ship, but the owners; and he is only a particular officer,

Ld.Rayin.558. and can only recover for his particular loss : yet he might have

Gaince. brought trespass, as a bailiff of goods may, and then as bailifFhe

could only have declared on his possession, which is sufficient to

maintain trespass.

Cro'jM^asj ^^^ servant is cosened of his master's money, the master may

So, if Tsur- ***^^ °^ action on the case against the cosener.

geoo, in connderation of a sura of money, undertakes to cure my servant of a hurt, and he

•pphes unwholesome medicines thereto, on purpose to make the wound worse, by which

1 lose the service of my 8er\ant for a long time, I may have an action on the case against the
•uricon. Roll. Abr. 98. Roll. R. 1 24. S. C. adjorn. 2 Bulst. 332. S. C, and quoad the point
of law, the court inclmed for the plaintiff, but for default in the pleadings adjourned. And
Mdiolr" ^^ composition. Roll. Abr. 88. HSee tit. Master and Servant (I),

SfVilJ'Fr' ^^'^^'^'^^"■^"* ^^^^ '^'^' in execution upon a capias ad
»49. S. P. ild-' *°^^sMi^dum, at the suit of J. D. and after J. S. escapes by a
mitted prrmr. 'Wcue of himself, the sheriff may have an action upon the case
(a)Bui,if wch against him for this escape, for he is thereby chargeable {b) over
!LCri!r.h»t 'o"" t^'s to J. Z). and this escape made from his bailiff was an

f**"^"?*^ ^™!" i!'*' **""^' ^^"^ ^^^f'^ shall not have an action upon the case against him,
bMMW be w not Charlie over : but the baUiff only is chargeable. For this vide RoW. Abr.
•7, f«, W. t ro. Elu. 26, 349. Moor, 432. and tit. Escape in Civil Cases

(B) Against whom such Actio7i ties. 89

If a man gives money to his servant to carry to such a place, Vide head of
and he is robbed, the master cannot bring case against him, for ^^^'^^^ o"d
a servant only undertakes for his diligence and fidelity, and not VoTT
for the strength and security of his defence.

But, if ^. is employed by B. to sail from England to the Sid. 298.
IndieSy and A. covenants, that he or his servants vi^ill not thence Hussey and
import any calicoes, Sfc. and A. retains C. as his servant in this ^^^^y- Lev.
voyage, and acquaints him with the covenant, and notwith- s.C Roll Abr*
standing C falsely and fraudulently brings thence certain call- 105. S.P.
coeSf Sfc. A. shall have an action against C. ; for though no action
lies by a master for the bare breach of his command, yet, if a
servant does any thing falsely and fraudulently to the damage of
his master, an action will lie.

[An action on the case for goods lost may be maintained Dgyjg y^ Jq^.
against a carrier either by the consignor or consignee ; and it dan, 5 Burr,
may be brought by the former, notwithstanding a private agree- 2680. Moor v.
ment between him and the consignee, that the carriage should be ^ '„
paid by the latter ; for the carrier is liable upon his agreement.] 559 WThe
doctrine that the action may be brought either by the consignee or the consignor seems
unsound. The question is governed by the consideration in whom the property of the
goods is vested ; and it is now settled that if the goods were ordered to be delivered to a car-
rier, whether a particular carrier be named or not, thej' vest in the vendee by delivery to the
carrier, and the action against the carrier for their loss must be in the name of the vendee.
Dawes v. Peck, 8 Term R. 330. Button v. Solomonson, 3 Bos. & Pull. 582; and see Jacobs v.
Neilson, 3 Taunt. 423. And though the consignor pay for the booking of the goods, or be
liable for the carriage to the carrier, these circumstances have been held to make no difference.

8 Term R. 530. King v, Meredith, 2 Camp. 639. ; and see Brown v. Hodgson, 2 Camp. 36. ; but
see contrh the cases above referred to. 5 Burr. 2680. 1 Term R. 659., and 3 Camp. 320. But
if the vendor is induced by a fraud of a swindler to deliver goods to a carrier for him, and the
carrier by negligence lets him get possession of them, the vendor may sue the carrier in his own
name; for no property in such case passes out of the vendor. Duff v. Budd, 3 Bro. & Bing.
177. oMoo. 469.||

(B) Against whom such Action lies.

T F the servant of a taverner sells wine to another which is cor- 9 H. 6. 53. b.
rupted, an action upon the case lies against the master (a), JRoll. Abr. 95.

though he did not command the servant to sell it to any par- ^' ^' (") ^"'
..1° ,7^ •' ^ no action

ticular person. (6) lies against

the servant. Roll. Abr. 95. So, if an attorney in an action of debt, knows of, and was a witness
to, a release of the debt made before the action brought for it, yet no action lies against the
attorney, for he acted only as a servant, and in the way of his calling. 1 Mod. 209. /;er curiam.
Vide 2 Black. R. 869. {b) If a servant sells an unsound horse, or other merchandize in a fair,
no action lies against the master, unless he commanded him to sell to a particular person.

9 H. 6. 53. Roll. Abr. 95. S. C. Poph. 143. S. C. cited. 2 Roll. R. 6. S. C. cited. But, if by
the command and covin of the master he sells to a particular person, an action lies against the
master, for it is then his own sale. 9 H. 6. 53. Fitz. Action sur le Case, 5. S. C. Roll. Abr. 95.
Bridgm. 128. S.C. cited. Sed qu. In the former case, if the servant warrant a horse sound
when he is unsound, and receive a sound price of the buyer, whether the master is not bound
by the warranty of the servant, and liable to an action ? ||It is now held, that if a servant is
employed by his master to sell a horse, he has an implied authority to warrant it, and the master
is bound by his warranty. Alexander v. Gibson, 2Camp. 555. ; and see 5 Esp. Ca. 72. 1 Dow.
P. C. 45. 3 Term R. 76 1. 15 East, 45., and tit. Master and Servant (K), Vol. V. The doctrine
that a sound price given implies a warranty is now exploded. 2 East, 322.||

So, if a goldsmith makes plate, wherein he mingles dross, so Vide Cro. Jac,

that it is not according to the standard, and by his servant sells r oc^s^c'

if J

ACTIONS ON THE CASE.

it; an action lies against the master, because it fails in the price

of silver.
BHdcn. I«5, ^"l 'f -^-y ^*"g possessed of certain artificial and counterfeit

It6. SoutbCTn jewels, of the value of 168/., and knowing them to be such, de-

■nd How,
•djuUsed.
9R0U.R.5.
a«,«7.8.C

livens them to B. his servant, commanding him to transport the
said jewels into Barbary,^ and to sell them to the king of Bar-
baryt or such otlier person as would buy them, but gives B. no
charge to conceal their being counterfeit; and thereupon B.
Pop*^»«- goes into Barbary, and knowing these jewels to be counterfeit,
Cro 3Jf"J69r s****^" ''»*^'" ^ ^' ^^^ SP^^ ^"^ ^''"^ jewels, and affirming to C,
ac.,«ndiherc that they were worth 810/., desires C. to sell them to the said
Mid^the court kinff for 8I0/L, which money C. pays B.y and B. thereupon ira-
"**!"^. mediately returns to England, and pays the 810/. to A. his

£«^ prin- roster ; and after the jewels being discovered to be counterfeit,
dpally becaufc C. is imprisoned by the said king till he repays

the 810/. out

of his own effects; of all which matter C. gives notice to A. and
demands satisfaction, Sfc, yet no action lies against A. ; for jewels
are in themselves of an uncertain value, and B. was not by A,
particularly directed to C, and all that was done quoad C. was
the voluntary act of the servant, for which the master is not
bound to answer.

A. did not
order B. to
coocoii their
being counter-
feit. |But it
Sipean from
e report of
this case in

Brid^. 196, 1S7., and S MolL 330., that the plaintiff had judgment; but in 2 Roll. R. 26, 27. it
b Hud judgment was for the defendant.||

Salk. S89.
pL 85. Ruled
by HoUon
eridcnce at
MM priui ;
bat for this
flUr tit.
Mmkmdmid

Salk.988.
n. Ruled
HoUwlmd

puBotnTnon-
Miit. |But it
UHich

th«

WIBUMT.

OHMton,
t8twfc.a4.;
■adit wiQ not
BaMMOitU)«

In an action on the case for a deceit, the plaintiflf set forth

that he bought several parcels of silk for silk, whereas it

was another kind of silk ; and that the defendant, well knowing

this deceit, sold them to him for silk. On trial, upon not

guilty, it appeared that there was no actual deceit in the^ de-
fendant, who was the merchant; but that it was in his factor
beyond sea : and the doubt was, if this deceit could charge the
merchant. And Holt C, J. was of opinion, that the mer-
chant was^ answerable for the deceit of his factor, though not
cnminaliter yet civiliter ; for seeing somebody must be a loser
by this deceit, it was more reasonable that he that employs and
puts a trust and confidence in the deceiver should be a loser,
than a stranger; and upon this opinion the plaintiff had a
verdict

If A. brings case against the master of a stage-coach, on the
custom of the realm, for a trunk lost by his negligence, S^c. and
on evidence it appears that the trunk was delivered to the servant
who drove the coach, who promised to take care of it, and that
the trunk was lost out of his possession ; the action does not lie
against the master, for a stage-coachman is not within the custom
as a carrier is (a), unless he take a distinct price for the carriage
of goods as well as persons ; and though money be given the
• v/*^* u^' '^*' ^^ * gratuity, and cannot bring the master
withm the custom ; for no master is chargeable with the acts of
hJs servant, but when he acts in execution of the authority given
by his master, and then the act of the servant is the act of the
rooster.

unless

(B) Against whom such Action Hes. 91

unless he stipulate for a reward to be paid to himself. Ibid.\\ (a) That if a carrier's porter
receives goods, the carrier shall be liable. Comb. 118. per Dolben J. jjSee Cavenagh v. Such,
1 Price, 328.11

II On the trial of an action on the case for not delivering, ac- Ellis v. Tur-
cording to contract, certain goods of the plaintiff at Siockwith, "^^' ^z^^"^™ ^'
which were shipped on board the defendant's vessel at Hull ,- jj^ses where
it appeared that the defendant's vessel, trading from Hull to the servant is
Gainsborough, took on board some goods belonging to the acting within
plaintiff, which were to be delivered at Stochwith ; the vessel hj^g^^^i^*'^
went safe as far as Stockwith, and there delivered part of the mg^t the
cargo ; but the master of the vessel finding it inconvenient to master is liable
deliver the rest there, proceeded on the voyage, and the vessel to answer for
sunk before her arrival at Gainsborausli. It was objected, ^"^ damage
that in this form of action, an action on the contract for not from the un-
safely carrying and delivering the goods at Stockwith, the de- skilfulness or
fendants were not liable ; as the non- delivery of the goods there negligence of
was owing to the misconduct of the master of the vessel ; and 1;^ ^^'^^^^.J
that if they were liable at all, the action should have been for the ley v. Gaisford
tort. But it was holden, that though the loss happened in con- 2 H. Black,
sequence of the misconduct of the defendant's servant, the supe- ^22. M'Manua
riors (the defendants) are answerable for it in this action; T g "* j^5'
that the defendants are answerable for the conduct of their O'^le v. Barnes
servant in those things which respect his duty under them (a), sTermR. i88.
although not for his conduct in those things which do not respect ^tone v. Cart-
his duty under them. 2"/^^/' ^T^™

Steinman, 1 Bos. & Pull. 404. Croft v. Alison," 4 Barn. & A. 590. Laugher v. Pointer, 5 Bam.
& C. 547. ; and see tit. Matter and Servant (K), and tit. Carriers.

Where a vessel was run down by a sloop of war during the Nicholson v.
watch of the lieutenant, who was upon deck, and had the actual ^ou"sey,
management and direction of the steering and navigating of the ^^d see' *
sloop at the time, and when the captain was not upon deck, 4 Made & S.
nor called by his duty to be there; it was adjudged, that the 86., and tit.
captain was not answerable for the damage. || V^'^^^^r^K?

If two are constituted post-masters general, by letters patent, Salk. 17. pi. 8.
pursuant to the statute 12 Car. 2. c. 35., and in the patent there i^s. Carth.
is a power to make deputies, and appoint servants at their will o^^r h f ^
and pleasure, and to take security of them in the name and to Cotton and
the use of the king, and that they, the post-masters general, shall Sir Thomas
obey such orders as from time to time shall come from the king ; Frankland,
and as to the revenue, shall obey the orders of the treasury; and f m d E^^t
it is further granted to them, that they shall not be chargeable los.Ld.Raym.
for their officers, but only for their own voluntary faults and 646. 12 Mod.
misbehaviours, and this is granted with a fee of 1500/. per an- 472. Comyns,
num ; and A. having exchequer-bills, encloses them in a letter n*^*.}, iX
directed to B. at Worcester, and delivers it at the post-office at s.C. with the
London, into the hands of J. S. who was appointed by the post- arguments
master general to receive letters, and had a salary ; by three P''° ^^^ <^on. at
judges against Holt C. J. the post-masters general are (a) not g'^fjf ^^"Jg
I'able. ^^i;,, r^. •

sons, who held also that J. S. was chargeable, but not as an officer, but as a wrong-doer. [The
opinion of the three judges hath been confirmed in a late case of Whitfield v. Lord Le De-

spenser,

92 ACTIONS ON THE CASE.

^„„„ i„ which 1. «. dcciiea that d.e ^'-^r d"l^y p°o"]fi:Lrrl f^^!

CbX'v.'"'lAn acul for not repairing fences, .hereby a party is dam-
hX»" nififd, cannot be brought against the owner of the fee, who is not
4TerniK.31«. j possession, but lies only against the occupier.]

W^i^E. in my possession, tl^ugh 1 have a remec y =«--t the tres
Vic.r...\Vil. p^sor, yet I may have an action agamst him that caused the

cock^8ElUt,l. J:„.,,rh«npe

s Bos. & Pull, disturoance.

a84.. and Pro. Jac. 471.|| i , i v u-

Roll Abr.90. If 1 deliver my horse to a smith to shoe, and he de ivers h.m

s;),if I deliver ^o another smith, who pricks hnn, I may have an action on the

g«°<^^^° ^- case against him, though I did not deliver the horse to him.

rhemVo rto keep to the use of ^., and B. wastes them I may have an action upon the case

Ininst B. though I did not deliver them to him. Roll. Abr. 90.

Scbinotti V. [An action on the case will lie against the commissioners of

Bumsted, the lottery, for not adjudging a prize to the person entitled to

6 Term R. 646. ^.^ceive it.

Blake V. Lan- It will lie against a person who receives or continues to employ

yon, 6 Term t^g servant of another after notice, though he did not originally

^tTfJ^and entice him away.]

Servant {0).\\ , . , , . n , ,

Sutton V. II A person acting in a public function which he is compellable

Clarke, * to execute gratuitously, using his best skill and diligence, and

6 Taunt. 29.; actinf without malice, is not liable for consequential damages

^ITtId." occasioned by his act.l|

penden, 1 East> 555.

(C) For what Injuries an Action on the Case will lie ;
and herein of those Cases wherein a Man may be said
to suffer Damnum absque injuria,

TINDER this division various cases maybe crmprehended ;
^ but, as several of them fall under others, I shall here only
observe, that though in some cases an injury happens to a man
in his property, by the neglect of another, yet if by law he was
not obliged to be more careful, no action will lie.

Leon. 223. As, if a man finds butter, and by his negligent keeping it

Owen, Ml. putrifies, yet no action will lie.

Cro. Elix. 219. Or, if a man finds garments, and by negligent keeping they
are moth-eaten, no action lies.

Id. ibid. So, if a man finds goods, and loses them again ; or if he finds

a horse, and gives him no sustenance, no action lies ; for in
these cases the law has laid no duty on the finder : for it would
be too rigorous to obUge him to be charitable in behalf of a care-
less owner.

Roll. Abr. 5. But, if he makes gain and advantage of the things he finds ;

1 Leon. 224. as if he rides the horse, or if he abuses the things ; as by putting

paper

paper into water; or if he kills sheep, Sfc. he shall answer for Cfo.EHz. 219.

them. g?"'^ 1^5.

Stile, 261.

If A. hires B. to carry a load of timber from one town to another 2 Lev. 196.
to be unloaded there, at such a place as A. shall appoint, and B. Virtue and
gives notice to A. that he will bring it such a day, and requests ?'*"'^' Yf °'*
him to appoint a place where he shall lay it, and he brings it sKeb.Vss.
accordingly, but A. will not appoint any place where it shall be S.C. adjudged,
laid, so that the horses of B. are kept so long in the cart, that
being hot they catch cold and die ; yet B. shall have no action
against A. for he might have taken his horses out of the cart and
walked them, or put them in a stable, or if A. would not have
appointed a place, as soon as he came there, he might have
unloaded in any convenient place, so that the injury the horses
received was through his own default.

II The being delayed four hours by an obstruction in a high- Greasly v.
way, and the being thereby prevented from performing the same Colling,
journey as many times in a day as if the obstruction had not ^ ^'"&' ^6^- ;
existed, is a sufficient injury to entitle the plaintiff to sue the v"M^les^°*^
obstructor. 4'Maule'& S.

101.

If the proximate cause of the injury to the plaintifFbe his own Butterfield v.
unskilfulness or want of care, he cannot sue the defendant, though Forrester,
the primary cause be the defendant's wrongful act ; thus where i? ^*^' ^^'
the plaintiff was riding violently and without ordinary care, and Adam
rode against an illegal obstruction in the highway, it was held 2 Taunt. 314.
he could not maintain an action.

An action on the case will not lie against a person suing out Sclieibel y.
a writ, if he neglect to countermand it after payment of the debt, Fairbain,
unless malice be averred. Without an averment of malice, it 1 Bos. & Pull.

should seem that courts will scarcely subject a party to damages \^?r. , S® ^•
n. r J J f J o Whiple,

tor mere non-ieasance. 3 East 314

Gibson v. Chaters, 2 Bos. & Pull. 129. ; and see 1 Moo. 92. 5 Price, 1.

But if an execution creditor refuse to accept from the debtor Crozer v. Pill-
who is in custody the debt and costs when tendered, and to sign '"g. * Bam. &
an authority to the sheriff to discharge the debtor, an action on ^^*
the case lies for maliciously refusing, and the refusal to sign the
discharge, is evidence of malice in the absence of circumstances
to rebut the presumption. 1|

If it be damnum absque injuria^ no action on the case lies [a) ; (a) Damnum
as if a school be set up in the same town where an ancient school ^bsqiie injurid,
has been time out of mind, by which the old school receives wiU not*Xear
damage, yet no action upon the case lies, because it is lawful for an action.
a man to teach where he pleases ; and this is for the ease of the 6 Mod. 46.
people. P^^ Gould J.

^ ^ 3 Bulst. 95.

11 H. 4. 47. 22H.6. 14.b. Fitz. Action sur le Case, 28. S. C. Bro. 42. S.C. Noy, 184.S.C.
Noy, 184. S. C. cited Roll. Abr. 107. Mod. 69. S. P. per Twisden arguendo.

So, if I retain a master in my house to instruct my children, n H. 4. 47.
though this be to the damage of the common master, yet no ^^^- ^**'"' ^^'^'
action lies. *

ACTIONS ON THE CASE.

Roll. Abr. 107. So, if I have a mill, and my neighbour builds another mill
Hardr. 16«. upon his own ground, per quod the profit of my mill is dmimished,
Brownl. 57. yg^ „(, action lies against him ; for every one (a) may lawfully

(a?t*ut!tf I c*^*^' * *"''' **" '"^ °^" ground.

have had a mill by prescription in my own land, if another erects a new mill upon his own
land, if this draws away the stream from my mill, or stops it, or makes too great a quantity
of water run to my mill, by which I receive damage, so that my mill cannot grind as much
m it was used to do, I shall have an action on tlic cote against him. 22 H. 6. 14. Dyer, 248.
Roll. Abr. 107.

9S H. 6. M. If a man hath a house upon his own ground by prescription,

b. Roll. Abr. „ * jf j [i^xM a house upon my own ground next adjoining, no
107. But if I •' *: ,. . ^ ' •' °

had a house ac''©" "es against me.

by prescription upon my ground, another cannot erect a house upon his own ground, so near
to It as to stop the light of my house. 22 H. 6. 15. 9 Co. 59. Bland's case, Bulst. 115.
Hut. 136. Roll. Abr. 107. 2 Roll. Abr. 143. 3 Leon. 93.

S2 H. 6. 14. If I have 100 acres of pasture in a town, and before this time

^oy- '84. jjQ jjj^,^ \\ax\i ever had any pasture within the same town, and
those of the town have used to agist their cattle in my pasture,
and another that has freehold within the town, converts his arable
land into pasture, so that those of the town agist their cattle
there, per qtiod this is a damage to me, yet I cannot have any
remedy against him ; for it is lawful for him to make the best
advantage he can of his own land.
Governor &c. ^^'^ ^ sustain an injury by the act of commissioners appointed
of the British by an act of parliament, without any excess of their jurisdiction,
Cast Plate- no action lies either against the commissioners or the persons
glasa Manufac- acting under them.]
tory V. Mere- ° -•

dith, 4 Terra R. 794. ||See Harris v. Baker, 4 Maule & S. 27. Hall v. Smith, 2 Bing. 156.
Boolton T. Crowther, 2 Barn. & C. 703.; and see Jones v. Bird, 5 Barn. & A. 857.||

Roll Abr. 98.
Cro. Jac. 474.
S. C. 3 Term
R.57.

Cro. Eliz. 53.
adjudged.
/i.ia3.S.P.
adjudged.

Rayin. 194.
Good jar and
Butk^aKeb.
688. S. C. ad-
Joora. sKeU

(D) At what Time the Right of Action shall be said
to have accrued.

TF .4. sells sheep io B. affirming them to be his own, whereas
they belong to C, B. may have an action against A. for his
dc -it, oefore C. hath seized the sheep, or interrupted him;
because they are things transitory, and therefore the action lies
before interruption : for if he should stay till C. interrupted him,
he may be dead before, or other disadvantage may happen.

If A. recovers in debt against B. and thereupon a capias ad
satisfaciendum k directed to C. the sheriff of N. to take B. in
execution, which is accordingly done, and after B. rescues him-
self, per quod C. becomes liable to answer for the debt ; now C.
may have an action against B. before A. sues C. ; for the rescue
and escape was a wrong to C, and he is always chargeable to A,
for it; and if C. must stay till sued by A., B. may die in the
interim, or fly his country.

A. brings an action against B. in which C. is attorney for A.,
and after verdict for A., C. enters judgment before the rules
(according to the course of the court) are out, per quod B. is
prevented from moving an arrest of judgment, and whether B.

may

(E) Actions on the Case for Fraud and' Deceit. 96

may have an action against C. was doubted ; and Twisden thought 716 S C ad-
it hard the attorney should be sued after the judgment is set aside, journ, it ap-
But 7iote, it does not appear in the case, as reported by Rai/mond, peanng that
otherwise than from what Twisden said, that the judgment was the judgment
set aside before the action brought. before B^ ^

brought his action. — An action brought against the plaintiff's attorney, for entering judgment
against the defendant, when the court ordered a nonpros. Hut. 125. and yet it appears the
judgment was set aside before the action brought.

If a man forges a bond in my name, it is possible I may be Hob. 267.
damnified by it, but till it be put in suit against me I cannot ^ ^^•. '*^*
bring an action against the forger. where'^bythe

plaintiff's own shewing he had no right of action at the time of bringing it. Vide Carth. 1 13.
and tit. Error.

II The cause of action accrues at the time when the tortious Grander v.

act is done by the defendant, so that the statute of limitations then George,

begins to run, although the plaintiff rriay not in fact know of the 5 Barn. & C.

act till long after ; unless indeed the defendant is guilty of fraud in gj^'^j^ ^"^ ^^^

concealing the act from the plaintiff's knowledge, in which case the M'Carthy.

cause of action would seem to be complete only on the plaintifPs s Bam. & A.

knowledge. Where an act is done not in itself tortious, and some ^26. Brown

time after consequential damage arises to the plaintiff from it, the ^'n °^&V

cause of action does not accrue [a) till the damage happens. || 73 . ^nd see
3 Barn. & A. 288. (a) Roberts v. Read, 16 East, 215. Gillon v. Boddington, 1 R. & Moo.
161.; and see 3 Barn. & A. 448.

(E) Of Actions on the Case for Fraud and Deceit in
Contracts on an express or implied Warranty.

II (See Addenda to tit. Fraud.) |1

1. On an implied Warranty in Laia.

T F there be a communication between A. and B. for the buying ^oU. Abr. 90.

of certain sheep, and B. the vendor («), says they are his own g*^^ 4^%

sheep, when in truth they are the sheep of another: whereupon c.ios. 2 East

A. buys them of B. though B. made not any express warranty of 314. (a) In

the sheep, yet an action upon the case, in nature of deceit, lies ^" action for
• ^ u- ' fraudulently

against him. selling to the

plaintiff a horse that was not the defendant's own horse, the plaintiff must prove that the defend-
ant knew him not to be his own horse. Allen, 91. Keb. 523. but, qucere ; et vide C^vth. 90. and
Salk. 210., that the having possession of any personal chattel, and affirming it to be his, amounts
to warranty; and an action lies on the affirmation. Per Holt C.J. See ace. 3 Term R. 37.

II The law raises an implied promise on the part of a sheriff Peto v. Blades,
selling goods seized in execution, that he does not know that he ^ Taunt. 657.
has no title to the goods. ||

So, if the vendor affirms that the goods are the goods of a Roll. Abr. 91.
stranger, his friend, and that he had an authority from him to
sell them, and thereupon B. buys them, when in truth they are
the goods of another; yet, if he sold them fraudulently and
falsely, upon this pretence of authority, though he did not war-
rant them, and though it is not averred that he sold them, know-
ing

ACTIONS ON THE CASE.

Roll. Abr. 91.
Stile, 310.
S.C. Keb. 5S3.
&C. cited.

Carth. 90.
Crosse and
Gardner.
5 Mod. 261.
S. C. Comb
148, S. C.

Ing them to be the goods of a stranger, yet B. shall have an
action upon the case for this deceit.

In an action upon the case by A. against B. if the plaintiff
declares that the defendant craftily intended, S^c. and offering to
sell a gelding to the plaintiff, affirmed that he brought up that
gelding from a colt, and that the said gelding was then his own,
which the plaintiff believing, afterwards, that is to say, upon the
same day and year, and at the place aforesaid, did buy the said
gelding, ^c. the action lies upon this declaration, though there
was no warranty upon the sale ; for this was an apparent deceit,
contrary to his own knowledge ; and though it is not averred that
he sold the gelding at the same time when he affirmed he bred
him up from a colt, but that the plaintiff /(O^/^-a the same day and
place bought him, giving credit thereunto, this shall be intended
immediately after the speaking of the words ; for all the words
could not be spoken together.

So in case^ in which the plaintiff declared, that there being a
colloquium between him and the defendant, concerning the buying
and selling of two oxen, which the defendant then had in his
possession, that he (the defendant) adtioic et ibidem false et mali-
tiose affirmahat) that these oxen where his ; to whiqh the plaintiff
Show.68.S.C. giving credit, bought them of the defendant for so much money;
(a) fj"f^'^ when in truth the said oxen were the proper goods of t7. S. and
vendidit, <J-c. that he the said J. b.postea, Sfc. lawiully recovered the said oxen
after verdict, from the plaintiff, Sfc. it was holden after verdict, that the action
imports that it lay on the bare affirmation, without an express warranty ; and
an" 'supplies ^^^ugh objected, that it was not set forth that he {a) sciens that
the want the oxen were the oxen of J. S. nor that he did it deceptive.

thereof. Stile, 3 lo. sKeb. 807. vide Keb. 309. — So sciem, ^c. implies that it was fraudtt-
Imthr. Sid. 146. — So where the plaintiff declares quod improvidk et incautb absque consider-
atione inaptUudimt loci, he drove his horses over the plaintiff; though not said sciens that they
were unruly. 2 Lev. 172.

M^dira^v^''"' ^°' ^^®^*^ ^^^ plaintiff declared, that the defendant being pos-
Stoughton.for messed of a certain lottery-ticket, sold it to him, affirming it to be
selling false ^'s own, whereas in truth it was not his, but another's ; defendant
bills of credit, pleaded, he bought it bona fide, and so sold it : on demurrer,

repJrtS\y ^°^^ ^^^' "^"^'* ^^^^' ^''^^'^^ °"^ having possession of any per-
lA. Raymond, ^*^"^^ chattel, sells it, the bare affirming it to be his, amounts to
595. and the a warranty, and an action lies on the affirmation ; for his having
duunction possession is a colour of title, and perhaps no other title can be
twJln^Se ^^"^^ °"'' "^''^^' ^^^^''^ the seller is out of possession ; for there
teller being in '"^y ^^ room to question the seller's title, and caveat emptor in
poacMion and such case to have either an express warranty, or a good title : so
2J1. b'S^ " '^'" '^^ case of lands, whether the seller be in or out of pos-
mentioned by f^^^'^"/ ^^ the seller cannot have them without a title, and the
him. Sec Mr. '^"3'^'* ^s at his peril to see to it.

J^-jfer'. observations upon it, 3 Term R. 58.] Vide Stile, 343. 346. Cro. Jac. 197.
RS^efranf' ^^ ^^^ plaintiff declares, that whereas Queen Elizabeth was
Vaughan. ^^l^*^" /" J^^ pf t^e advowson of the vicarage of S. whereto the

Moor, 4€7. t'thes m 5. did belong, and that the defendant, upon the ninth
S.C of June, did affirm himself to be lawful incumbent thereof, and

that

(E) Actions on the Case for Fraud. (Warranty.) 97

that he had right to the tythes from the death of Jl N. and after,
upon the sixteenth o^June, the plaintiff having a communication
with the defendant about his buying of the defendant the said
tythes till Michaelmas following, the defendant adtunc sciens that
he had no right thereto (the defendant not having been insti-
tuted, c§T.) yet false et deceptive sold them to the plaintiff for 30/.
and alleges in facto, that J. N. was after presented, ^c. and took
the tythes, <^c. the action does not lie ; for there was no warranty
that the plaintiff should enjoy them ; and this affirmation also
was in time precedent to the sale. ^

So, if the plaintiff declares, that upon a communication be- Yelv. 20.
tween the plaintiff and the defendant, for the purchase of a certain Harvey and
term of years, v/hich the defendant then had in certain lands, Young. See
the defendant asseruit to the plaintiff, that the said term was ^^^
worth 1 50/. to be sold ; to which the said plaintiffj'^l^^w adhihens
did give the defendant 1 50/. for the same, and that after, the
plaintiff offering the said term to sale, could not get so much for
the same ; the action does not lie ; for here was only a naked
affirmation of the defendant, that the term was worth so much ;
and it was the plaintiff's folly to believe him.

But if, on a treaty for the purchase of a house, the defendant Salk.211.pl. 5.
affirms the rent to be SO/, per annum, whereas in truth it is but ^ ^.^"^^ ^1?4
20/., and thereby the plaintiff is induced to give so much more Ray^^'ms
than the house is worth, the action lies (a) ; for the value of the g. C. (a) Lev.
rent is matter that lies in the private knowledge of the land- 102. Sid. 146.
lord and tenant; and if they affirm the rent to be more than it Keb. 510. 318.
is, the purchaser is cheated, and ought to have a remedy for ^^^\y'^^ "
it. (^) (6) But if A

possessed of a term of years, offers to sell it to B., and says that a stranger would have given
him 20/. for this term, by which means B. buys it, though in truth A, was never offered 20/.
no action on the case lies, though B. is hereby deceived in the value. Roll. Abr. 91. 101.
Sid. 146. S. P.

II Where an action is brought for a false representation by ^^^^^ ^•
defendant knowingly made, and by which the plaintiff has sus- r'Vj^^'''.^,
tamed damage, it is not necessary to shew that the aeienuant
intended to injure the plaintiff. ||

2. Where Case will lie for a Fraud on an express Warranty.

If A. being a goldsmith, and having skill in jewels and precious Cro. Jac. 4.
stones, hath a stone which he affirms to be a Bezoar-stone, and tvveen^Chan^-
sells it to B. for 100/., when in fact it was no Bezoar-stone, no jgr and Lopus
action lies against A. ; for every one in selling his wares will affirm upon a writ of
that his goods are good, or that the horse which he sells is sound ; ^^'^ '" 'j'^'"*
and yet if he does not warrant them so (c), if false, no action g^rst judgment
lies, (a) reversed ac-

cordingly by all the justices and barons, cont. Anderson. Vide Dyer, 15. 'n margin, S. C.
cited, as adjudged in B. R. and they said, that the opinion of Popham was, that if I have

any commodity • • " ' •• • « . . r,-

80, an action 1

it to be good,

as adjudged in "b. R. 2 Roll. Rep. 5. S. C. cited, and said that the judgment was reversed,

because it was not pleaded that he knew it to be false at the time of the sale. ||So

Vol. I. H Springwell

98 ACTIONS ON THE CASE.

Snrinewcll v. Allen, Alc^•n 91. Paget v. Wilkinson, Tr. 8 W. 5. 2 Bast, 448. in not. and
DowJinj: V. Mortimer, Ibid. 453. in not. (c) If therefore he warrants tliem, in an action on
the cnsHbr a breach of that warranty, the scioiIIt need not be charged, nor if charged need it
be proveii. Willianison v. Allison, 2 East, 44G. LofFc, 146.|| (d) [An affirmation at the time of a
sale is n warranty, provided it appear in evidence to have been so intended. 3 Term R, 57.
tuprii, (E.)] llAs to implied warranties of the quality of goods &c. sold, see Parkinson v. Lee,

2 East, 514. Gray v. Cox, 4 Barn. & C. 108. Laing v. Fidgcon, 6 Taunt. 108. 4 Camp. 169.
144. Jones V. Bright, 5 Bing. 553.\\

Jeudwinc v, ||It lias been held that the setting the name of an old master

Riade, 2 Esp. against a picture in a sale catalogue is no warranty, but merely

*'** a representation of the seller's opinion.

Hall V. Gray, But if the agent of the vendor of a picture, knowing the vendee

I Stark. 434. labours under a delusion with respect to^i picture, which mate-

rially influences his judgment, permits him to make the purchase
without removing the delusion, the sale is void. ||

II H. 6. 18. If a man sells a tun of wine (a), and warrants it to be

^•^•^•^^- sound, and not corrupted, if it be corrupted an acftmi upon the

o. p. Poph. 1- *•

J43.S.P:cited. <^«5^"es.

A. sells sheep, and warrants that they are sound, and shall continue so for a year after, this is

good, and shall bind him. l|See JoliflTe t. Bendell, 1 Ry. &Moo. 136.|| Vide Dam. Ahr. 96.

188. (a) This action lies, though he hath not paid for it; for the other may have debt for his

money. Bro. Guarranty, 59. ^

(b) 11 H. 6. 18. So, if a man sells a horse (Z»), and warrants him to be sound of

S r M B t^' ^^^ wind and limbs (c), if he be not ah action upon the case lies.

without such warranty no action lies. 20 H, 6. 35. F. N. B. 94. S. P. Bridg. 127. S. P. Roll.
Ahr. 90. S. P. [If sold at the price of a sound horse, case in the nature of deceit would lie.
Deianccy v. Dymock, sittings after Easter term 1789, coram Lord Kenyon. See too

3 Wooddes. 199.] ||But a sound price given does not raise an implied warranty. 2 East, 322.
Douglas, 20.||

D^mlon V. []If the seller sell the horse as of the age stated in a written

PeakeCa. 123. V^^^ff^^^ this is a warranty, though the seller declare he^ knows

nothing of the horse except what he has learned from the

pedigree. ||
Roll.Abr. 96. If ^ nian, knowing his horse to be lame and foundered, offers
((f) Rut qiuere, him to me to buy, and warrants him to be sound, 4 c. relying
nt^rllJule^tat "P°" ^^^^^^ ^ buy him, by which I am deceived ; though the
thrwarranty^ warranty here was before the sale, yet because this was the cause
must be made of the sale, an action upon the case Hes thereupon, {d)
at the time of the sale. Vide Cro. Jac. 4. 1 96, 1 97. 630., nor can it be made after ; per Bridgman
127. Godb. 31. Vide Salk. 211. pi. 4. [Where a treaty for the sale of a commodity had
been entirely broken off, a warranty made at the time of such sale was holden not to extend
to a subsequent sale ofthe same commodity at a reduced price. Anon. Stra. 414.]
Roll. Abr. 97. ^^ ^' ^ells a horse to B. and warrants him to be sound of wind
adjudged. and limb, and clean of legs, whereas he well knows that he is

I.C adiiidged s^oyWer-pitched, and has splints upon his legs, an action lies
(*) But (}u^re ^g^^st him upon this warranty (e) ; for these imperfections are
of .^ V not subject to the view of an unskilful person.

**' V't ^*'"^'. ^ ^°"- ^- ^' ^"^S- ^28. Diversity where he has no eve, and where

nU'liror''V. n • ^"S*^* *^>'®'^"^"'''^'^C'*o-J«c.3B7. sBulst. 95. sKeb.loi. Bro.
•SiIj. smS,!^^^^^^^ F.N.B.94.note(c). 2 Wooddes. 41 5. l|See Liddard v. Kain,

B^JleffieVifv.'*' V^^ plaintiff declared, that the defendant sold him a horse

Burroughs. * ^"^'^ » ^^y and place, ct adlunc et ibidem 'isoarrantizavit equum

prcedict, to be sound wind and limb, whereupon he paid hi»

money,

(E) Actions on the Case for Fraud. (Warranty.) 99

money, and avers the horse had but one eye, Sfc, on plea nmi
ivarrantizavit, the plaintiff had a verdict : and it was objected in
arrest of judgment, 1. That the want of an eye is a visible thing,
whereas the warranty extends only to secret infirmities; but to
this it was answered and resolved by the court, that this might
be so, and must be found to be so, since the jury have found that
the defendant did warrant. 2. As the warranty is here set forth,
it might be at a time after the sale, whereas it ought to be part
of the very contract ; and therefore it is always alleged warranti-
zando vendidit; sed non allocatur; for the payment was after-
wards, and it was that which completed the bargain, which was
imperfect without it.

[If there be an express warranty not respecting the soundness Buchanan v.
of horses merely, but some distinct matter, as their age; and it 2XerraR'745
be a condition of sale, that the horses, if conceived to be unsound, ii/^) ggg Poul-
shall be returned in a limited time ; an action may be maintained ton v. Latti-
by the buyer if the horses are not of the age they are warranted more, 9 Barn,
to be, though they are not returned till after such time has &^-259.|l
elapsed ; for the condition of sale applies only to the unsound-
ness ; nor does the buyer lose his remedy, though, upon the
seller's refusing to take them back, he sells them again to a third
person, [a)

Although on the sale of a horse there is an express warranty Adam r.
by the seller, that the horse is sound, free from vice, 8fC. yet, if ? u^ gf\
it is accompanied with an undertaking on the part of the seller to ^^^J
take the horse again, and pay back the purchase-money, if on
trial he shall be found to have any of the defects mentioned in the
warranty ; the buyer must return the horse as soon as he dis-
covers any of those defects, else he cannot maintain an action
upon the warranty. For the term trial in such case means a
reasonable trial.

It has been determined by the Court of Common Pleas, that' Fielder r.
the seller of an unsound horse warranted sound, if it can be ^^''Hi?' . p
clearly proved that the horse was unsound at the time of the sale, J^ iisee Curl
is liable to an action on the warranty, without notice or return.] tis'v. Hannay,

3 Esp. 82. Poulton V. Lattiinore, 9 Bam. & C. 259.tf

II A temporary lameness which renders a horse less fit for ser- i<;iton v.
vice is a breach of warranty of soundness. Brogden,

4 Camp. 281.; sed vide 2 Esp. Ca. 573 .

Roaring is unsoundness, if it is shewn to proceed from some gassett v. Col-
disease or organic defect. lis, 2 Camp.

523. Onslow V. Eames, 2 Stark. 81.

A nerved horse is unsound. Best v. Os-

borne, 1 Ry. & Moo. 290.

Crib-biting is not a breach of a general warranty of soundness. Brennenburgh

V. Haycock, Holt Ca. 630,
A cough, unless proved to be of a temporary nature, is un- shillitoe v.
soundness. Claridge,

2 Chitt. R. 425. ; and see Ibid. 418.

If a horse is sold with a warranty that he is a good drawer, Coltherd v.

H 2 and

100

Puncheon,
sDoir.&

Rjran, 10.

Richardson v.
Brown,
I Btng. 344.

GeddesT.
Pennington,
SDow.&R.
164.

Cuwcll V.

Coarc,

I Taunt. 566.

1 Camp. 82.

Symonds v.
Carr, I Camp.
361.

P&yne v.
Whale, r East,
874.

ACTIONS ON THE CASE.

and pulls quiet in harness, both parts of the warranty must be
shewn by the seller to be true.

A warranty as follows, « To be sold, a black gelding, five
years old, has been continually driven in the plough, warranted,"
applies to nothing more than soundness, and not to having been
driven continually in the plough.

Wliere a horse is sold with a warranty of soundness, but there
is a misrepresentation at the sale as to the place from whence the
horse came, if the warranty is complied with, the misrepresent-
ation will not vitiate the sale.

Upon the breach of a warranty of a horse, the measure of
damages, if the horse is returned, is the price paid for him ; if
the horse is not returned, the measure of damages is the differ-
ence between the real value and the price paid. If the horse is
not tendered to the defendant, the plaintiff can recover nothing
for the expense of his keep.

Where two persons severally employed a dealer to sell their
horses, and he sold them for an entire price, and warranted them
sound ; it was held that the purchaser could not sever the con-
tract, and bring an action on the warranty -against one of the
sellers, in respect of the unsoundness of his horse.

Where the seller warranted a horse sound, and in a conversa-
tion subsequently said, that if the horse were unsound (which he
denied), he would take it again, and return the money ; it was
held that this was no abandonment of the original contract, and
the vendee's remedy was upon the warranty. U

(F) Of Actions on the Case for Injuries to a Man's
Person, Property, Right, or Privilege.

Vent 295. JF .4. rides an unruly horse in Lincoln^ s-Inn Fields, (being a
3 kcl) 6^^' ^^^^^ "^"^^ frequented by the king's subjects, and unfit for

S. C.'and 8c- ^^^^^ purpose,) to break and tame him, and the horse breaks from
veral cases •^' and runs over B. and grievously hurts him, 8^c. B. shall have
cited of actions an action against A. : for though the mischief was done against

i.3« done '^^ ^^^^ °^ ^'^ y®' ^'"^^ ^^ ^^^ ^'^ ^^^^^ ^ bring a wild horse into
to a man's ^^^^ ^ P^^^^» where mischief probably might ensue, A. must
person by wild answer for the consequence of so ill an act.

and ungovernable animals. An action for keeping a mad bull which gored the plaintiff, &c.
^^:ui n '" , r.^^ *^"'"^* ^^ ^"^ge'l '" the declaration that the defendant knew
ttattne bull was mad. Ibid In all cases where the mischief is done by animals mansuetcB
mnawttie owner must be shewn to have had notice of their viciousness before he can be
SEI^-k" L "°"? must be set out in the declaration ; but as to animals /^r* nature,
SSTJ^? ^l ,bT/^'''".nr 'V^''^^'^?'■ «"y ''^'"^?e t^'ey may do, wUhout notice. Ld. Raym.
SL ir~>» . A '^ 'F"?? plamtiff allege m his declaration that the defendant /enow-

2Si?L?»1fl!^"l°'"*^ **? '"/^ '^^P ""^ ^° bite mankind, this allegation must be strictly
ErSrfji^t l"^* / ^? declaration would be good if it alleged generally that the defend-
ffiS^Hlil^^Mt^^^^^ l!'^f'^' '^' --^^ disposition.^ufge v. c'ox, I Stark. .86.

t^'u^Jo' ^' -{^ "^^" ^^y* H^ of wood cross a highway, though a person
H«; there ^^y w.th care ride safely by (a), yet if by means thereof my horse

stumbles,

(F) For Injuries to a Matins PersoUy Propertt/, <§,t. 101

stumbles, and thereby I am wounded or hurt, I shall have action be a want of
on the case. ordinary care,

in such case
the action will not lie. Butterfield v. Forrester, 1 1 East, 60. Though the primary cause of the
damage may be the misfeasance of the defendant, yet if the proximate cause be the plaintiff's
unskilfulness, he cannot recover. Flower v. Adam, 2 Taunt. SM.JI

For an injury accruing to a man in his (a) real estate of free- ^°'^- ^^"^v. '°^*
hold or inheritance, case will lie ; as, \i A. levies a fine, suffers fee jn'^r^ft for
a recovery, acknowledges a judgment, recognizances, statute me refuses to
merchant, or staple, in my name, I may have an action. execute the

trust, I have
no remedy but in chancery; but, if he enfeoffs another, an action on the case lies. Roll.
Abr. 108. 2 Vent. 27. So, if the officer refuses to enrol a bargain and sale. Sid. 209,
2 Bulst. 336.

If a parishioner sets out his tythes of hay duly, and requires Roll. Abr. 109
the parson to carry them off his land, but he does not carry them 5 Burr. i89i,
off in a convenient time, per quod the grass where the hay lies is USee Williami
impaired by the hay's lying upon it, an action upon the case lies ^"^^ p'
against the parson, ^„/[^ y^^^;,

(G g). Vol. VIII. II [The parson is not obliged to take tythe of grass the day it is cut, but may
let it lie there long enough to make it into hay. Stra. 245.]

If a man who ought to enclose against my land does not Roll. Abr. 105.
enclose, per quod the cattle of his tenants enter into my land (*) Or the cat-
and do damage to me, I may have an action on the case against *^^ of any other
k;.^ /j.\ person. [The

*^"^-(^) . ^ action can be

brought only against the tenant in possession. 4 Term R. 318. Supra, (B).] Ij Unless it can
be shewn that the landlord is actually bound to repair. Payne v. Rogers, 2 H. Black. 350. ;
and see 4 Taunt. 649. A person who has suffered loss in consequence of the decay of sea walls,
which a corporation is directed to repair under a grant from tne crown, may sue the corpo-
ration for damages. Henly v. Mayor &c. of Lyme, 5 Bing. 91.||

Ijlf A. sends his horse to B. for the night, and B. turns it out Rooth v.
after dark into his field, separated from a field of C. by a fence, y^^^°"'o .
which C. is bound to repair, and the horse, from the bad state of ^g
the fence, falls from one field into the other and is killed, B. may
maintain an action against C, and recover the value of the horse,
and this although B. is a gratuitous bailee. ||

If A. being a mason, and using to sell stones, is possessed of Cro. Jac. 567.
a certain stone-pit, and B. intending to discredit it and deprive Roll.R. I62.
him of the profit of the said mine, imposes so great threats upon ' *
his workmen, and disturbs all comers, threatening to maim and
vex them with suits if they buy any stones, so that some desist
from working, and others from buying, S^c. A. shall have an
action upon the case against B., for the profit of his mine is thereby
impaired.

If a man menaces my tenants at will of life and member, per ^o\\. Abr. 107,
quod they depart from their tenures (c), an action upon the case j^e threaten-
lies against him. ing, without'

their departure, is no cause of action. Roll. Abr. 108. Where a copyholder may have case
against his lord for cutting the tops of trees, for not admitting on a surrender, or for not hold-
ing a court, vide head of Copyhold.

II If a man discharges guns near my decoy-pond with design to Keeble v.
damnify me by frightening away the wild fowl resorting thereto, f J^E^^^t"^'-'!

H 3 and ** ' ^' *

lot ACTIONS ON THE CASE.

and the wHd fowl are thereby frightened away, and I am clamni-

ficd, nn action on the case lies against him.
Ilaanam ▼. It is to be observed tliat wild fowl are protected by statute

Mockett, 25 H. 8. c 1 1. and are a known article of food ; but an action

9 Bam. & C. jo^s ^ot lie for discharging guns near the plaintiff's rookery, and
"^ thereby disturbing the rooks, for they are birds ^r<a? nalura, of

destructive habits, and not protected by any act of parliament,

and the plaintiff can have no property in them.||
But for thw If a commoner, who hath a right to common by grant or

■Mghod of prescription, be disturbed by the lord or a stranger in the enjoy-
g|""*^*"*^ ment, lie may have an action on the case.

4 Mod. 17*5. 6 Mod. 19. Ld. Raym. 1225. Salk. 170. pi. 3. 364. pi. 5. Skin. 214. Lutw.
74. 101.

1 Roll. Abr. [If a man has a private way over the land of another, and is

109. Cro. EUi. obstructed in the enjoyment of it, this action lies, whether he
« RoH Abr da'^i it by express reservation in any modern deed, by grant,
140. 1 Venu-. by prescription, or by operation of law. This easement may be
874. Com. 7. obstructed in an actionable manner, not only by slopping up the
In an action ^^y q^ passage, but by ploughing up the land over which the
^Dot repair- ^^ ^*®^* ^' *^ sufficient as against a wrongdoer"(a), for the declar-
ing a private ation to allege generally that the plaintiff was lawfully possessed
road leading of a certain tenement, and by reason thereof entitled to the way

through his jj^ question, without deducing a regular title from any person
crotind. It IS • j • r o o J r

efficient to seised m fee.

charge him as occupier upon h'ls possession merely. Rider t. Smith, 3 Term R. 766. %a) And
to also in declaring against the owner of the soil, the phiintiff may declare on his possession.
9WiU.S8und.n4.a. no^ii.jl

1 RdL Abr. If any person erects a smelting-house, or works for making

mitt^i Burr. QQ^sfort's, or such like, the vapour and smoke of which spoil the
835. ISeepwi g^^ss or com, or injure the cattle of his neighbour, it is a nui-
(G), and aUo sance to the land for which this action lies.]
tit. Nttttanct.\^

For dm tide If A. hath a mill by prescription which he hath used to repair,

Ro!l!Abr*i*07. ^"^ *^ ^^'^.^ ^^^ ^^^ tenants of the manor, time out of mind, have

Dany.Abr. 5,' ground their corn and grain spent in the houses of the tenants of

«. and Carth. the said manor, if one of the tenants grinds his corn elsewhere,

filLi^™'*!' \' ^* ^^^°^^ ^^^^ *" ^'^^"^ ^ '^^ '^°^^ against him. So, if A. by his

5i<?*pL 5. prescription has a mill on his own land, and B. erects a mill on

889. pL 25. "^ own land, if by this ^.'s mill receives any prejudice by having

the water stopped or drawn away, or having too great a quantity

°^^ater run on his mill, by which it cannot grind as much as it

used to do, A, shall have an action on the case against him.

1^51^7?^' k ^ °' "^^ ^^^^ ancient pits which are replenished by a rivulet,

"® "^*y cleanse, but cannot enlarge the channels leading to them

to the prejudice to another ; if he does, he is liable to an action

^^ on the case for diverting the water.]

5Il?6^ka«. v}^^ the owner of land through which a river runs enlarge a
w^, ndm <^"^nel of certain dimensions, through which the water had been
ig^W. y^J° J®^ before any appropriation of it by another, and
« Ph«. . Uiereby divert more of it to the prejudice of a land-owner lower

down the nver, who had at any time before such enlargement

appro-

• Prioe,!.

(F) For Injuries to a Man*s Person, Properlify S^^. lOS

appropriated to Iiimself the surplus water vhich did not escape
by the former channel, case lies against him.

But the plaintiff in such an action must allege, and prove that Williams r
he has sustained an injury from the want of a sufficient quantity Moriand,
of water. If this is shewn, the action may be maintained, though 2 Barn. & C.
the plaintiff has not enjoyed his mill precisely in the same con- ^^o. 4 Dow.*
dition for twenty years. || Sa^u'nckrs t.

Newman, 1 Barn. 8c A. 258. And see Greenslade v. Halliday, 6 Bing. 379.

[If a man have an ancient ferry, and another set up a new Blisset v.
ferry so near to it as to draw away the custom, case lies; for he ^ '^'p Vj*"
who has an ancient ferry is compellable by law to keep boats, Sfc. jj^jj' j^j p"^
and therefore the law having imposed an obligation upon him, 76.
protects him in the exclusive enjoyment of the right.

But an exclusive right to a ferry from A. to B. does not pre- Tripp v.
vent persons from going by any other boat from A. directly to C l^rank, 4 Term
though it be near to B., provided it be not done fraudulently, ^^' ^^^'
and merely for the purpose of avoiding the regular ferry.]

II In an action on the case for disturbing a f«rry, it is sufficient Peter v. Ken-
to prove that the plaintiff was in possession of the ferry at the dall, 6 Barn,
time when the cause of action arose. It is not necessary to & ^- 703.
allege or prove the payment of any specified sum for passage
money.

Neglect of duty on the part of the owner of the ferry is no Ibid.
answer to the action, although the crown may, on that ground,
repeal the grant by a scire facias or a qiio warranio.\\

For injuries to a man's house or habitation, an action on the Kell. 98.b.

ca5^ will lie; as i? A. hath the upper room, and B. the under , ', ' , ^'"^'
1 J 1 . . 1 • r> L (C). 2 Leon,

room, and A. neglects to cover his upper room, B. may riave an ^^^ j^^ ^j ^^^y

action on the case against A. and thereby compel him to cover force li. to

his upper room for the preservation of the timber of the under support his un-

room. '^^^ '■"O"* ^""^

the preserv-
ation of the upper room of A. Kelw. 98. ||See Peyton r. Mayor of London, post.\\

If the plaintiff declares that J". S. being seised of a messuage in Poph. 46.
fee, 23 April, 32 Eiiz. did demise to the plaintiff a cellar from f,^)-,"'!'^'^ ""f
week to week, Sfc. and that after, viz. 29 Julj/, 32 Eliz. J. S. did juj^^.i! i,i the
demise to the defendant a warehouse, being right over the said Court of Ex-
cellar, to hold from week to week, ^c. and that the plaintiff being chequer, and
possessed of the cellar, and the defendant of the said warehouse, ^, ™ c '"
and the plaintiff then having in the said cellar three butts of sack, q Leon. 93 a-i.
of the value of 40/. 4'c. the defendant, 30 Jidi/, 32 Eliz. did place S. C.
so great a weight of goods in the said warehouse, and thereby did
so over-burden the floor of the said warehouse, that by force and
weight of the said burden, the said floor on the said 30 Juli/
broke, and the said goods did fall upon the said butts, and broke
the same, ^r. and the defendant pleads that a short time before
the floor did sustain as great weight as this, and the warehouse
was let to him to lay in thirty ton weight, and that he had placed
there but fourteen ton ; and that what damage had happened to
the plaintiff, was by reason that the floor at the time, as also
before the lease to him made, was rotten, and the wall whereupon
the floor lay so decayed, that the said floor liroke, Src. for want of

H 4 repara-

104 ACTIONS ON THE CASE.

reiiarations before the lease to him made; the plaintiff shall have
his judgment, for it is expressly alleged that the floor, by the
weight of the said merchandize, did break, and that is not tra-
versed but answered argumentatively only, viz. that it did bear
more l>efore, ngo, ^c. and though it was ruinous when the
defendant took it, yet if it fell by reason of any weight by the
defendant placed there, he must answer for the consequence.
For Um cum It was formerly holden, that if a fire broke out accidentally in
on thb had, n man's house, and raged to that degree as to burn his neigh-
«Mr DaiiT. hour's, tl>at he in whose house the fire first happened, was liable
•nd sis 'is *o *" ^^^'^ ^ '^'^ '^^^^ °" ^^^ general custom of the realm, quod

&ih'.°i: Lr^"^ '^"'°' '""" "'"" *'• , :::z^i^- 'VA-,

6 Ann. C.31. But now by tlie 6 Ann. cap. 31. § 6, 7. it is' enacted, that " no '

$6, 7. M action, suit, or process whatsoever shall be had, maintained,

roa.'Ic'pcnw^ " °^ prosecuted against any person in whose house or chamber
tualbj loAnn. " any fire shall accidentally begin, or any recompense be made
c H. $1. "by such person for any damage suffered or occasioned there-

Co. Lit 57. iL « jjy^ ^^^ provided that nothing contained in the act shall extend
°* ' ^ ' "to defeat or make void any contract or agreement made be-

" tween landlord and tenant.";^ ' ; . , /^^, fVr*~
Pc)ton T. II If the plaintiffs house in Cheapside adjoins the defendant's

Mayor of house, and the defendant pulls his house down, and in conse-
^^?~;^'^£; quence thereof the plaintifjp's house in part falls, the plaintiff
7g^, ' cannot have an action against the defendant, unless he allege and

prove a right to have his house lean against and be supported by
the defendant's house. But if the defendant pulls his house
down without giving proper notice to the plaintiff, so that the
plaintiff may protect his house by shoring it, it seems an action
lies. II
Cro.Car. 187. If the plaintiff declares that he was and is yet possessed of a
8 C*lJhKiBed ^^^^ ^^^ several years adtunc et adhuc ventur. of and in a house,
juogea. ^^j ^j^^^ j^^ demised the same to the defendant for six months,
and that after the six months expired, the defendant being per-
mitted to occupy the said house for two months longer, pulled
down the windows, Spc. this action well lies, in regard that the
plaintiff is chargeable over in an action of waste.
Yomgv. flThe owner of a house may have an action on the case

8p««'» against his lessee for opening a new door, if the reversionary

I45^^t«* '"^®*"<^s' >s injured by it, although the house itself is not weak-
iMto.& enedorinjured.il
Malk. 350. 405.

fiwthbf'tiile'^ ^^ °' ™^.*^^^^ *" ancient house, and another builds a house so
JVWMlie«,«nd"f°'" ^^^^ ^^^ windows are darkened, he may have an action on
Daav. 805. '^ <^^* against him. (a)

2!?l;i*?' ,?xT''/«' f Mod. 116. 313. See Ld. Raym. 392. 713. 2 Salk. 459. pi. 4.
!S- f„ I'll I' ^"^ ^'» * "•"" ^"^*^^ a ^o"se so near mine as to cause the

jfaloWluponniyhouK. Roll. Abr. 107. 2 Leon. 93. S. P. [i Stra. 645. Fortesc.

{SITr™ • V^^^. '^"^'^"^ window has been stopped up for twenty years.
oi«,3Ump. It 103^3 jt3 privUege, and the owner cannot sue his neighbour

for

(F) For Injuries to a Maris Person, Property, S^c. 105

for doing an act which was no nuisance while the window was 514. And
stopped up, and which only became so by a new window being v^u[^ ^ j
opened where the old one had been. l,|gn stopped

up and a blank wall built for the space of seventeen years, the privilege was held to be lost, so
that the owner could not open windows again, and complain of an obstruction by his neigh-
bour made while the blank wall was existing. Moore v. Rawson, 3 Bam. & C. 332. ; and see
1 Moo. & Malk. 350.

But if an ancient window be enlarged, although the enlarged Chandler v.
portion of it is not privileged, yet the adjoining landowner cannot Thompson,
obstruct the passage of light and air, to any portion of the space '^'

occupied by the ancient window ; and it is no excuse for doing
so, that more light and air is admitted through the unobstructed
part than was anciently enjoyed.

The owner of ancient windows cannot by altering the purposes Martin v.
for which his house is used, acquire any extended right against Goble,
his neighbour. Therefore where a building, which had been for ^ ^a™P-322.
twenty years used as a malt-house, was converted into a dwelling-
house, it was decided that the owner was entitled only to the de-
gree of light necessary for making malt, and not to all that
might be necessary for domestic purposes.

A title to lights cannot be acquired as against an adjoining Daniel t.
proprietor by twenty years' enjoyment of them, if it appear that North,
during all that time the adjoining premises have been occupied ^ ^ *•' ^^^*
by a tenant, and there is no evidence of the proprietor having
any knowledge of the enjoyment of the lights ; for without his
knowledge a grant of the easement cannot be presumed against
him.

And it was held the same where the land adjoining the lights Barker v.
had been glebe land, in the occupation of the rector ; for the 4 b^^^^'a
rector as a mere tenant for life could not grant the easement, and 579. *
consequently a grant could not be presumed.

But if it appear that the adjoining premises have been occu- Cross v. Lewis,
pied by a tenant for twenty years, and it does not appear how Lg ^VT g^
they were occupied prior to that tenancy, and the lights have Ry.'234.
been enjoyed thirty-eight years without interruption, a presump-
tion of grant may be made, since during the eighteen years after
their commencement nothing appears to rebut the presumption ;
and it makes no difference that the lights were not opened at the
extremity of the party's land.

If the owner of a house divide it into two tenements, and Riviere v.
demise one to the defendant, he is liable to an action on the case ^°^^'"' * ^y*
for obstructing windows existing in the house at the time of the &^oo-24.i
demise, although of recent construction, and though there was 1 Price 27.
no stipulation against the obstruction. || 1 Moo. &

Malk. 396.

[If a man has a right to sit in a particular pew in a church. Stocks v.
and is disturbed therein, he may have an action on the case, ^oo''^ ^^.^'■™
Such right may be claimed either by prescription as appurtenant q'^^ g*^^ ' ^*
to a messuage from keeping it in repair ; or under a faculty (a) 1 b. E. L. 329.
from the ordinary ; or, perhaps, under an allotment and agree- Kenrick v.
ment with the minister and churchwardens, especially where the Taylor, iWils.
church is rebuilt. In all cases it seems necessary to claim the f^^' umnte?™

pew

10(> ACTIONS ON THE CASE.

, iicw ns appurtenant to a messuage in the declaration, {b) Where

SSl^te this action is brought against a stranger or wrong-doer, it is
ptaamed. sufficict.t for the plaintiff to allege in his declaration that he is
5T«raiIt898. entitletl by prescription to the pew in question, as appurtenant to
A fiioilry to • ,^j^ niessuage, without further stating the particulars of his claini. (c)
hS!i U not" Hilt against the ordinary, wiio has pHrnd facie the disposal of all
good: nor is a the scats in the church, a title or consideration must be shewn m
prcKription m ,1,^ declaration and proved ; as a faculty from one of his prede-
K'^iTtTm** censors having built at a distant period, or by due authority, such
r! 488. I n. E. pew, or having constantly repaired the same.

L. S3 1, jjlt mu«t l)c npinirtcnnnt to a house or messuage in the parish. Mainwanng v. Giles,
5Btfn. & A. 35«.; and see Forrest, 14. Byerlev v. WincUis, 5 Barn. & C. l.|| See Cross v.
adter, 3 Term H. 63y., in which case the King's Bench held, that the sentences in the eccle-
Mttiral courts were not conclusive evidence of the right. But that case does not seem to
itfbrd anv gcncrul rule, for the two superior ecclesiastical jurisdictions appear not to have de-
cMed po'iitivcly on the right. 3 Wooddes. 196. (A) 1 Wils. 526. 1 Term R. 431. (c) An
uninterrupted [Hjssetwion of the pew for thirty years is presumptive evidence of a prescnptive
right; but that presumption may be rebutted by proof of the non-existence of the pew before
that time. Griffith v. Matthews, 5 Term R. 296.

Godb. SCO. If a parson deface a grave-stone or coat-armour in a church,

Cto.Jac.367. jjjjs action lies, notwithstanding the injury l^e wilful and direct;

for in this case, as in that immediately preceding, trespass vi et

minis cannot be brought ; because the freehold of the church is

in the rector.]

Spooncrv. || Where, however, a person wrongfully removed a tombstone

Brt-wstcr, from the church-yard, and erased the inscription, it was lately

sBii%. 136 jjgjj j|,gj ^j^g erector of it might maintain trespass against him.|l

As to the torts and injuries affecting a man's personal property,

and for which an action on the case is the proper remedy, they

are so many and so various in their kinds, that they cannot well

be laid together; I shall set down only some of them here, and

such as may govern in like cases.

p^ y^ [Fraud and deceit in the defendant, and damage to the plain-

Freemao, tiff, are a sufficient foundation for this action, though no benefit

s Term R. 51. accrue to the defendant ; therefore it was holden by three justices

!-*JJ* V^""*" °^ ^^^ ^"'"^ °^ ^* ^•' against Grose J. that it would lie for a

."Tis's. i* ^*'^^ affirmation respecting the credit of a third person, made

Without fraud with intent to deceive the plaintiff*, and by which he was injured,

and an intent though it did not appear that the defendant was benefited by the

to weave, deceit, or tiiat he colluded with him of whom he ijave the ficti-
thia action. It .• \ ^ -, *

•eeM, cannot ^^^^^ character.]

be mvatained ; the representation must be made maid fide. Haycraft v. Creasy, 2 East, 92.
Hoh*» Ca. 387. Sec Lord Eldonh observations on the case of Pasley v. Freeman, 6 Ves. 186.
See aUo Ta(>p v. Lcc, 3 Bos. & Pull. 361. If, however, the representation of the defendant is
fidae to hh knowleiigc, the platntifT need not show any intention on the defendant's part
to injlire him. 7 Bin^. 105. if the representation is fraudulent, and is made with reference
to tlw pbiotiflr* o|>enmg an account with the party as a gaieral customer, and the plaintiH",
ia coMSqMMc of it, tells gootis from time to time to the buyer, and is afterwards a loser
%j yjm, CMS Kc* for the deceit, although the buyer pays for the first parcels of goods, on the
^^ 1 of which the reference is made. This liability, however, is to be limited within a rea-
dme, and to a reasonable amount. Hutchinson v. Bell, 1 Tannt. 558. But if the vendor
generally of the defendant concerning the buyer's circumstances, he cannot maintain
the action if the buyer pays for the particular goods which it was in contemplation to sell at
-iMl IIbk the rcprewntation was made, though the buyer becomes insolvent and docs not pay
fcr Mkv goods Mibwquently sold. Dc Graves v. Smith, 2 Camp. 533, : and see 2 New R. 24 1.
«i Price, 56. 7Pricc,5«.||

li Where

(F) For Tniuries to a Man^s Person, Property , 6^c, 107

II Where the vendor of a public-house, pending the treaty, made Dobell v.

deceitful representations as to the amount of business done at, S^-c. ?n^^"^V p

whereby the plaintiff was induced to give a large sum for it, it was ggs,
held that the latter might sue for the deceitful representations,
although not noticed in the conveyance or agreement of sale. ||

If a man razes the name of the obligor out of an obligation. Roll. Abr. loo.

and in the room thereof puts in the name of J. S. and after sues ^9'" cheating

him upon this obligation, J. S. may have an action on the case. q^.^ g^j^, '^^ ^

Co. Ent. 8. F. N. B. 95. Moor, 776. For keeping a dog, knowing him to be accustomed to
bite sheep. Danv. Abr. 19. [If he afterwards bite a hoi*se ; for the owner ought to have
destroyed him on notice of the first mischief. Ld. Raym. 69. That he hath done so twice
before is sufficient proof of usage. Dy. 236.] ||Seean/^, p. 100,, and sCarr. & P. 138.|| For using
the same mark which the plaintiff hath used to set to his cloths. Poph. 144. Cro. Jac. 471.
S Roll. R. 28. iJSykes v. Sykes, 3 Barn. & C. 541. acc.|l

If A. takes my cattle and drives them into ^.'s close, where Roll. Abr. 90.

tliey do B. such prejudice as subjects me to B's action, I may Lane, 67.
have an action o?i the case against A.

II If a man place dangerous traps baited with flesh in his own Townsend v.

ground, so near to a highway or the premises of another, that Wathen,

dogs passing along the highway, or kept in those premises, will 9 East, 277.
probably be attracted by the scent into the traps, and his neigh-
bour's dogs are so attracted, and thereby injured, an action on
the case lies against him.

The court of C. B. were divided in opinion on the question, Deane v.

whether it was lawful for the owners of woodlands to set dog Clayton,

spears in them for the preservation of his hares, the spears being ji^oof *203 *•

all more than fifty yards from the public pathway, which passed and see

through the wood, and public notice being given outside the 2 Stark. 317.
wood.

And where a trespasser had knowledge that spring guns were Ilott v. Wilkes,

set in a wood, although ignorant of the particular spots where ^ Barn. & A.

they were placed, it was held that he could not maintain an action ^°^'
for an injury received from treading on one of the guns.

But it is otherwise if the plaintiff has no knowledge. Bird y. Hol-
brook, 4 Bing. 1 Moo. & Malk. 595. 628. By 7 & 8 G. 4. c. 18. $ 1. setting spring guns, man
traps, &c. is a misdemeanour, except when set in dwelling houses.

The law requires of persons keeping instruments of danger, Dixon v. Bell,
that they should keep them with the utmost care ; therefore where f gg *"
the defendant being possessed of a loaded gun, sent a young girl
to fetch it, and gave directions to take the priming out, and this
was done, but nevertheless a damage accrued to the plaintiff's
son, in consequence of the girl presenting the gun at him and
drawing the trigger, when it went off, it was held that defendant
was liable to an action on the case.||

If a man lend or hire another's horse, and for want of safe Cro. Eliz. 777.
keeping the horse die, the owner may have an actio?i on the case ^*^* Owen, 52,
to repair the damage sustained by the negligence of the borrower, j^^^.' jg.
So, if a man lend another sheep to tath his land, and if by the Godb. 72.
negligence of the borrower they are drowned; so, if a man Doci.Sf Stud.
lend another a horse, who puts him into a ruinous stable, which M^"{«f'"u^^V
tumbles in upon him and kills him («) : or if a man over-ride a 'i \viS)n°°*
horse lent or hired to him, in all these cases an action will lie; 1 Bam. &'a.

but, 59.11

108 ACTIONS ON THE CASE.

but, if the stable had fallen by a violent tempest, or the horse died

of any disease, then had the hirer or borrower been excused.

Oodb. 885, If ^' obtains judgment in a debt against B. as executor to his

sRoU. R.31S father, and thereupon A. takes out ajerifadasy but before the

Mod. 186. sheriff can execute it B. secrete etfraudulenter sells, removes, and

[Thb lart MI- disposes of all the testator's goods, so that the sheriff is forced
uin* tL"c"n'. to return nuUa bona, ^c. an action upon the case lies^ against^..

thority roain-

tnry.] for the sheriff could not return a devastavit; and if this action

does not lie, the party is without remedy.

Garth. 3, 4. If ^' declares that he had obtained judgment against J. S. for

Smith and 100/. and that 100/. more was due to him for rent arrear; that

Tonstall, ad- |,g intending to take out execution, and also to bring an action of

judgcil^on^e^ debt for the rent in arrear, (the said J. S. being then possessed of

3^ffii^ed in goods and chattels sufficient to discharge the whole,) which being

the House of very well known to B. (the defendant) he, by covin conspiring

Pccn. ^ith the said J.S. to defeat the plaintiff of his execution, and of

recovering the money for rent arrear, procured the said J. S. to

confess a judgment for 160/. (of such a term) to one J. N. uhi

revera the said J. S. did not owe any thing to the said J. N. and

that he sued out execution on this feigned jndgment, by virtue

whereof he seized all the goods and chattels of the said J. S.

which he esloined to places unknown, and converted to his own

use, by reason whereof the plaintiff lost his debt ; the action

well lies.

Leon. 240. Also for injuries done to a man with respect to his wife, as by

Noy, 106. having criminal conversation with her ; with respect to his child,

I k\^ iO ^ ^y enticing him away, or by enticing away his servant (a); or

by aeducing ^^ ^Y servant without cause or licence departs from my service,

Im daughter, and J. S. knowing him to be my servant, retains him in his

per quod $er- service, and so keeps him, an action lies.
vitium tmtitit.

The right to which action seems to be extended to one standing in loco parentit. But in either
case if the daughter be of age, acts of service must be proved. 2 Term R. 166. 5 Burr. 1878.
1 1 East, 22. If under age the relation of master and servant must subsist at the time of the
•eduction. Dean v. Peel, 5 East, 45. In actions of adultery the proper form is trespass ; and
for the other injuries adverted to in the text, satisfaction may be had in that form of action.
Cowp. 54. sWils. 18. See 2Term R. 1C7. Ld. Raym. 1032., and the remarks thereon in
sWoodde«.«45, 246. n. ||Sce tit. Trespass (C), VoI.VII.|| (a) But where a servant had
covenanted to work at a trade for a limited time, under a penalty, and having'quitted his place,
tbeaatter sued him and recovered the penalty; this was holden to discharge the second
BMter fipom an action for hiring him, the penalty being deemed full satisfaction for the loss of
•emce. Bird v. Randall, 3 Burr. 1345. 1 Black. R. 375. S. C. jjSee tit. Master and Servant.\\

gttaktad v. [So it was holden, that this action would lie where the de-

Wakeman, fendant falsely and maliciously wrote a letter to a person who
'S M 8.C ^^ engaged to take the plaintiff as his wife, suggesting, that he
IKA.US. ^^ ^^^ husband, by means whereof the intended marriage was
«w.«o».S.C. frustrated.]
It neiat, unleM »omc special damage could have been proved, that this cause would have been

pronBrooly for the eccleuastical court, under the name of a suit for jactitation of viarriage.

RolL Abr. 88. So, if a man digs a ditch in the highway, into which my ser-
2Bul»i.334. vant falls and breaks his thigh, by which I lose his service for a

long

(F) For Injuries to a Man's Person, Property, ^c. 109

lonff time, I shall have an action oil the case against him lb) for „ ,. t,

.1 °l ru- • ^ Roll. R. 124.

the loss of his service. (^^ S^^ ^^ dig.

ging a pit, per quod J. S. for whose life I hold lands, was drowned. Keb. 847.

Also actions on the case are proper for injuries in disturbing Vide Assump-
one in the enjoyment of any right or privilege he is entitled to; ^''■* ^^** -^^*'*
as, if the beadle of an hundred ought by virtue of his place to
have by prescription certain gallons of beer of every brewer at a
certain price, if the brewers will not suffer him to have it ac-
cordingly, an action upon the case lies.

II A declaration is bad which merely states that the plaintiff Thompson v.
being a solicitor retained at a public meeting to submit a bill in Noel, 1 5 East,
parliament, and that the defendant, the chairman of the meet- * ^ '
ing, and one of the committee appointed for despatch of business,
conspired with others to disturb plaintiff in his employment,
and procured other solicitors to be employed. ||

If a man ought to have toll upon the buying of cattle in a 7 H. 4. 44. b.
market, if one buys cattle and does not pay the toll, an action on ^^' ^- ^^' ^-
the case lies against him. ^^X^S^e.

S. R. Bro. 57. S. C. Roll. Abr. ] 06. S. C. [In such case, assuvipsit is now usually brought,
1 Term R. 61 6. 660.] So, if persons coming to market are disturbed, by which I lose my toll,
an action on the case lies. 11 H. 4. 47. b. Roll. Abr. 106. Vent. 26, 28. Or if upon a^sale
in a fair a stranger disturbs the lord in taking the toll, an action upon the case lies. 9 H. 6. 45.
Roll. Abr. 106. [It is the proper remedy for a fraud upon the toll of a market. Cowp. 664.]
IJBailiffs, &c. of Tewkesbury, v. Bricknell, 2 Taunt. 120.||

[An action on the case will not lie against justices of the peace Basset v. God-
for refusing to grant a licence to keep an inn or ale-house.] schall, Esq.

sWils. 121.
[I In an action against a magistrate for a malicious conviction, Burley v.
it is not sufficient for plaintiff to shew himself innocent of the Bethune,
offence, but he must also prove, from what passed before the ^ Tf ""u 11°* .
magistrate, that there was a want of probable cause. |j and see tit. '

Justices, and tit. Trespass.

If my tenants within a certain seignorv ought time out of 43 E. 3. so.

mind to go free to every market and fair to sell and buy goods ^o"-aw. 106.

without payment of toll, and one takes toll of them in his fair or ya^j y'j p^j.j

market, an action on the case lies against him. 2 Saund. 172.

and the notes (5th ed.).||

If a man disturbs my steward in holding my leet, an action on ^^„ ^ ^^
the case lies against him. So if the

lord's servants are disturbed in collecting his tythes. 19R. 2. 52. Roll. Abr- 107. So, if a
&t"anger who has no right, holds a court in my manor, and by distresses, &c. so impoverishes
my tenants that they cannot pay their rents, an action on the case lies. 13 H. 4. 11. Roll.
Abr. 106.

If a man hath the assize of bread and beer, fines, amerciaments, 38 H. 6. 9. b.
and other matters of frankpledge, by the king's grant, and he Rojl. Abr. 106.
distrains for an amerciament, and a stranger makes a rescue, an „ ju''" action
action upon the case lies against him. the plaintiff

declares that Queen Elizabeth did grant to him the office of steward of the manor of D. and
that the defendants eundem plaintiff ad exercend. dictum officium, et vadia, feoda, commoda
et proficua thereto belonging habere et percipere, vi et armis ivipediverunt, ^c. this is a good
declaration, notwithstanding the catua cauians^vix. the interruption of the plaintiff to exercise

the

no ACTIONS ON THE CASE.

the ofBcc. U Jaia to be done ri ct armit, for the causa causata, viz. the loss of the fees, is the
LL^fthe .ction. 9 Co. 50. 4 Leon, 243. Hob. 180. Pahn. 46. 2 Brownl. 532. Cro.
C«r. 377. 5» Roll- Kep- 139.

9Co.88.Vent. If the sljeriff of the county, or his bailiff, execute a writ in a
SM.8ko«r. »7. franchise or liberty of one, who by grant or prescription hath the
^^•■*' *'** execution and return of writs, an action on the case lies.
Cvrctt ▼. U But where the long established and recognized practice had

SmJIpi^ been, that a writ of capias with a noti omittas clause issued in
9 BM^ 530. ji^g ^^j.j instance, and was executed by the sheriff, within a par-
ticular liberty, the bailiff of which had the execution and return
of writs, without a writ of latitat first issued, and a return of
mandavi halliro, Sfc.y it was held, that an action on the case could
not be supported by the bailiff against the party suing out
such writes; since under these circumstances he could not shew
that he wrongfully, injuriously, and deceitfully caused it to be
issued. II

We are next to enquire for what wrongs and injuries com-
mitted by officers and ministers of justice, and others, acting
contrary to the duty the law lays on them, with respect to their
trades and callings, an action on the case will lie. And therefore,

1. Where an Action on the Case mil lie against Officers and
Ministers of Justice,

9 H. 6. 60, h. It seems agreed, that no action on the case (a) lies against a
Roll.Abr.92. judge of a court of record for a wrong judgment, and that if it
\\C 'p'p appears to have been an error of his judgment (i), he is subject
350. URex v. ^ ^^ prosecution whatsoever.

Jackson, 1 Term R. 653. Rex v. Borron, 3 Barn. & A. 452. Rex v. Bishop, 5 Barn. A. 612.j|
(a) Not against a judge of the inferior court for taking insufficient bail. Hutt. 120. An
actioQ Ues against a judge of the Stannary CJourt for refusing a plea which by law he ought to
have accepted. 2 Roll. R. 498. per j'onet Just, cccteris absentibus ; but for this vide title
BUU of Excepliom, (6) But for corruption they are punishable ; the judges in Westminster-
hail, properly, by impeachment in parliament. 1 Hawk. P. C. 550. Inferior judges by inform-
ntioo, attacnmcnt, &c. for which vide the heads ; also the head of Offices and Officers ; and
t Salk. 396. where, per HoU^ the Mayor of Hereford, for giving judgment for his own lessee
in ejectment, was committed.*

• As to the immunity of the judges from prosecutions, vide 31 Ed. 3. st.4. c. 17.

Leon. 189. If the plaintiff declare that he affirmed a plaint of debt in the

court of B, against C. and thereupon caused C. to be arrested,

and that the defendants (being the mayor, town-clerk, and gaoler

of n. did conspire to delay the plaintiff in his suit ; and in part

of his said debt had let C. go at large, without taking any part,

this action will lie, for the not taking of bail is not the cause of

the action, but the conspiracy.

ME. 3.39. If the bailiffs in ancient demesne hold plea after the record is

UkcMint' '^"^oved in banky by which the tenant loses his land there by

Roil. Abr. 92. '«^overy, he may have an action upon the case against them.

8^P« •c^ooy'"^^ the under steward of a court baron, for proceeding after a corpus cum

emuA deRrared. S Leon. 99 adjudged. Against a clerk who had the custody of a record, and

Riflrred it to be altered. Raym. 53. Sid. 77. Keb. 23. 346. Vide Lev. 64.

4 Intt. 226. If an escheator returns a false office, contrary to what was

Rol^AlM-%a. ^^"*^ ^y ^^^i"^» in prejudice of the party, an action upon the

case

(F) For Lyurks to a MarCs Person, P roper ti/, <§^c. Ill

case lies against him ; for in this he is barely an officer, and not
a judge.

If my servant is robbed, and he goes to a justice of peace and Leon. 323.
prays to be examined touching the robbery, and the justice re- ^ji.^'^t- 27.
fuses to examine him, so that I am thereby damnified, and can- But for this
not proceed against the hundred, I shall have an action against vide title
the justice; for the examination by him in this case is not as a Justices of
judge, but as a particular minister by the act appointed for this ^^«c^.
purpose, (c)

{(I) If a summoner of the ecclesiastical court falsely and ma- Roll. Abr. 90.
liciously colore officii sui to the intent to scandalize J. S. with the Carlian and
fame of incontinency with A., and to put him to expense in the ^'Ul- Cro. Car.
Ecclesiastical Court, cites J. S. to appear for incontinency with A., jon'gg gjg
upon which J. S. appears, and is there charged by the judge with S. C. (d) Like
it, and upon his answer discharged, by which he is put to ex- point in an ac-
pence ; J. S. may have an action upon the case against the sum- ^'°" ^'nst
moner upon such a declaration, though he be an officer of the dens for such a
Ecclesiastical Court; inasmuch as it is alleged that 'he cited him presentment,
falsely and maliciously et colore officii^ it shall be intended that he Cro. Car. 285.
did it without process. ^^^' ^^■

Abr. 112. pi. 9. 2 Mod. 52. Vent. 86. Sid. 463. Lev. 292. S.P.

(a) If a minister of justice hath a warrant to (a) attach (b) the (a)3Bulst.2i2.
goods of another, and can do it and does it not, an actio?i tipon ^ ._'
the case lies against him. S.P. per curiam,

(b) So, if I shew J. S. to the sheriff, and give him a writ to arrest him, and he does not.
Cro. Eliz. 873. per Walvisly. (c) But, if upon a capias utlagatum before judgment, the sheriflT
neglects to extend or seize goods, &c. this is the king's loss, and the party shall have no
action, though it was objected, the sheriff extending, &c. would have been a means to force
the defendant to appear ; but it was said, that if it had been shewn that the sherift" might have
taken his body, &c. there would have been more reason to support the action. 2 Vent. 90.

If a sheriff makes a false return, as, if he return a cepi corpus For this vide
and paratum haheOy or languidus, when the party is at large "^'-^^ ^x Sheriff
without bail, an action on the case lies against him for the false ^^j,^ Actions.
return : but if he had taken bail, though the party does not ap-
pear at the return of the writ, yet no action lies against the
sheriff; for by the 23 H. 6. c. 9. the sheriff is obliged to take
bail.

If the sheriff returns the tenant summoned in a real action 26 Ass. 48.
where he was not, by which he (d) loses by default, an action lies li ^ V^^'u^f*
against him for this. " acdonVthe

sheriff is liable, vide head of Sheriff, {d) For the judgment should stand, and the party is put
to his remedy against the sheriff. Moor, 349. Bro. Action sur Case, 5. Goulds. 128.

[If a bailiff remove goods off the premises under a. Jieri facias Palgravev.

before the landlord is paid his year's rent pursuant to the statute ^"'"^'ham,

8 Ann. c. 17., case lies against him; and the action may be iiSce tit. ^t«/

brought at the suit of an administrator.] (K), 8.||

If at the petition of ^. and the rest of the creditors of 5. a com- 2 Roll. Rep.

mission upon the statute against bankrupts is issued out against 47. But for

B. and thereupon the commissioners sit, and offer interrogatories ^^^^ "^'' '^^''^

to C. and he refuses to be examined, and by them thereupon is and^GoalTnS

committed to prison, and the gaoler suffers him to escape, A. Gaoler.
may have an action against the gaoler for this escape.

[If

112 ACTIONS ON THE CASE.

Ravenscroft [If a gaoler suffer a prisoner upon mesne process to escape, he

▼. Eyle«, is liable to an action on the case, though the prisoner return the

l^^' ^l*' same day to the prison, and the plaintiff proceed to final judgment
iaj>€,m,lGaol aganist him.J
and Gaoler^ and Sheriff.^^

Roll. Hep. 78. If a warrant upon a^fieri facias to levy a debt at the suit of J. S.
^^oH-Abr. 94. i^ jirected to an under-bailiff of a liberty, and he by virtue
AM^u thereof levy the debt, and after conceal the writ and make not
and BaHif. any certificate thereof, an action on the case lies against the

under-bailiff, because he has done a personal tort.
Latch, 159. So, if a distress at the suit of ^. issues out of the court of C.

Adjudged directed to J. S. (who is not the usual officer) to distrain the cattle
"rroruTnV °^ ^' *^^-' °^ ^^^^ ^' should find pledges to appear at the next
judgment in court ; and thereupon J. S. distrains the cattle of B. and after re-
Cheyney delivers them to B. without taking sufficient security, Sec. and B.

Court. jQgs not appear, 4'C' an action lies against J. S., notwithstanding

he is no known officer, but pro hac vice only.

Roll. Abr. 93. If a summoner of the ecclesiastical court, upon a premonition

s Bulst. 266. directed to him by the ecclesiastical court to warn J. S. to pay

12 Co'. 128. certain costs awarded against him by the court, returns to the

Roll. Rep. 63. court, that he hath warned the said J. 5., by which the saidjl S,

S.C. adjudged is excommunicated, where in truth he never warned him; J. S.

between ^^^y have an action upon the case against him for this false return,

Godfrey. though he be an ecclesiastical officer ; for the excommunication

is a temporal as well as a spiritual disadvantage, as during its

continuance he cannot bring an action, and is liable to an ex-

communicatio capiendo.

Sid. 276. \{ dijleri facias de bonis ecclesiasiicis of J". & be directed to the

l^*Ss^^320 ^'shop of E. and he return qicod nulla habet bono ecclesiastical

lA. Raym. ' which is false, an action on the case lies against the bishop for

265.11 this false return.

11 Co. 99. If upon a mandamus to restore J. S. to his place of a burgess of

James Bagge's p, xiel causam nobis signif. the mayor, S^c. return a good cause,
SS.'^So'^'an '^^^ matter of which is false, an action lies for the false return,
action lies against the mayor and commonalty of L. for making a false certificate of a
custom. Hob. 87. So, against the surrogate of a bishop, who makes a false return as to the
custom of choosing churchwardens. 3 Lev. 362. Vide Garth. 227. 2 Salk. 428. pi. 1. 430.
pi. 5. Ld. Raym. 391. Vide tit. Mandamus. [And note, that regularly an action on the case
IS the proper remedy for all false returns. Doug. 153, 154.]

beTween' ^^" ^^ ^^^ plaintiff declares, that within the city of London there is

Turner and *" ancient bridge, and that by custom of the said city two officers

Sr Samuel to look after it, called bridge-masters, by the citizens at a common

Suriing, ad- hall assembled have been yearly chosen or continued ; and that if

!^J^m ^Tu^ '^^"^ ^^^^*° ^^^ ^^^^ ^^'^ ^"^^^^ another for the remainder
colli. Vaughan, of the year hath always been chosen as aforesaid, and that there
and Vent. 206. are certain fees and profits belonging to the said office; and that
S. C. upon a A. and B. were elected to this office ; that A. during his said year
InBR!^^ „ ' 7^ "PO" a hall, by the defendant (being then lord mayor)
firmed per called for the election of a bridge-master in the place of A. then
totam curiam, and there the plaintiff and one J. S. as competitors stood for the
St Ut. 53. said office ; and thereupon the question did arise, who had the

greater

(F) For Injuries to a Man's Person^ Property t S^' H^

greater number of electors ; and the plaintiff did aver his number g q. A.ml
to be the greater ; and thereupon did request the defendant, that there the cus-
according to the custom they might go to the poll, but the defend- torn was laid,
ant did refuse to number the polls, and made proclamation that gjg(.j.Qj.g ^gj-g
die electors should depart, and discharged the court, and J. S. go divided,
was sworn ; per quod the plaintiff lost the profit of the place, <§•<:. that the plu-
this action lies as well for this (a) injurious prevention of him ra^i^y ^^"^^
from obtaining the office, as for an hindrance of him in the , ^^^ ^j^^^
execution thereof; for qui destruit medium destruitjinem. the mayor

ought to m'ant the poll, and that the electors were so divided, &c. And adjudged per cur.
prcEter Vaughan, that the action lay ; though it was not averred that he would have been
elected if the poll had been granted ; for the mayor did not do his duty, and the per quoad
he lost the profits of his place is sufficient after verdict, (a) If upon a writ de coronatore
eligend, the sheriff will not return him coroner who is chosen by the major part, an action lies.
2 Vent. 26. Vide 2 Sid. 168, 169, &c. 3 Keb. 664. 859. Diversity between an office of govern-
ment and an office of profit.

A. declares that the king's writ issued, and was delivered to the Salk. 20, 21.
sheriff of Bucks, for election of members of parliament in his &c. Ld.Raym.
county ; that the sheriff made out his precept to the defendants, ^^a\^\\ 8.
being constables of the borough of Ayleshurif, for the election of g^ -pri, 89.
two burgesses for that borough, which was delivered, and the Cas. Temp,
burgesses duly assembled to choose, ^c. and that the plaintiff Holt, 524.
being duly qualified, 8fc. and ready to give his voice for L. and 1^J^° ^ ' ^'
M. to be burgesses, Sfc. the defendants, knowing the premises, white et al.
maliciously obstructed him, and would not allow or receive it, adjudged by
and that without his voice two burgesses were chosen; it was ad- three judges,
judged after a verdict for the plaintiff in B. B. by three judges Q^j^.^ho held,
against Holt C. J. that the action did not lie. Their chief rea- that for every
sons were, that this was a parliamentary offence, and properly injury an ac-
enquirable there ; that to determine it here might occasion a t^o" i»y > *^'\^*
clashing of jurisdictions ; that it did not appear that the party had jury jong'the"
suffered any injury; that to allow of such actions would create a plaintiff; as it
multiplicity of actions, to the great prejudice of officers ; and deprived him
per Gould J. the officer is a judge, and therefore not liable to an of the greatest
action; Siud per PowisJ. he is quasi a judge, and therefore has ^u^Yecf has
a distinguishing power who to admit and who to refuse.' which is that

of consenting to those laws by which he is to be bound ; that the parliament's having a juris-
diction is no objection, especially in this case, where the grievance is, that the party is not
represented; that the officer is neither a judge, nor quasi a judge; that the multiplicity of
actions is no objection ; for if a man will multiply wrongs, it is but reasonable that actions
should be multiplied, &c. And note ; the judgment was reversed in the House of Lords,
according to Holt's opinion : Trevor C. J. and P7-ice and sixteen lords concurred with the
judges o( B. R. the rest of the judges and fifty lords concurred with Holt. ||l Bro. P. Ca. 62.
S. C. But though the judgment was reversed in the House of Lords, yet the lords did not
proceed upon the broad ground which Lord Holt had taken in the court below. Lord Holt
nad insisted that the action lay for the mere obstruction of the right ; but the lords, in the
justification of their conduct, which was supposed to be written by Lord Holt, put it upon a
different principle, the wilfulness, the maliciousness of the act. 8 St. Tr. 129. And subsequent
cases have considered malice as of the very essence of actions of this kind, and upon that
principle judges have adopted the decision of the lords in this case. Harman v. Tappcnden,

1 East, 555. Drew v. Colton, Id. 563. Milward v. Sargent, Id. 567. Cullen v. Morris,

2 Stark. R. 577.||

flln case against the sheriff of Sujfolk, the declaration charged, Barnardiston
that the defendant maliciously intending to deprive him. of the ^" °*'*'"^'
Vol. I. I office

114 ACTIONS ON THE CASE.

«Lct. 114. office of kni«r|it of the shire, made a double return. Upon a
Pollcxf. 470. trial at bar, Twisdcti, Rainsford, and Wijlde held, and so dn-ected
the jury, that if the return were made maliciously, they ought
to fintl for the plaintiff; which they did with 800/. damages.
On motion in arrest of judgment, Hnle C. J. being in court, he,
Twisdeii and n^lde J. held, that forasmuch as the return was
laid to he /also et malitiose et ed intentinne to put the plaintiff to
charge and expense, and so found by the jury, the action lay.

5 Lev 50 Judgment, however, was reversed in the Exchequer Chamber,
iLutw.89. and that judgment of reversal affirmed in parliament. This
7 St, Tr. 422. reversal gave occasion to the act of 7 & 8 W. S. c. 7. which should
eScTr. 102. gggj„ Jo be a declaratory act, and which gives an action against

the returning officer for all false returns mlfully made, and for
double Teiuvns falsely, 'wilfully^- and maliciomlij made.
Schinotti v. ^^ action on the case lies against a commissioner of the

Bumstead, * lottery for not adjudging a prize to the holder of a ticket entitled

6 Term R. 646. to receive it-U

2. Wliere Case •will lie for Torts and Injuries committed hy Per-
sons contrary to the Duty of their Trades and Callings.

Roll Abr 8. ^^* ^^^ (^) delivers goods to a common carrier (/;), to carry

Vide for this them to a certain place, if he loses them, an action upon the case
title Carrier, lies against him ; for by the common custom of the realm he

and head of ^^^i to carry them safely.
Trover and o J J

Convertion. (a) An action lies against a ferryman that refuses to carry passengers. Hardr. 1G3.
Vide a special declaration against a letter-carrier for the non-<lelivei"y of a letter delivered out
to him at the general post-office. Rob. Ent. 103. (i) So, against a lighterman, master cf a
ship, or owners. Roil. Abr. 2. 2Lev. C9. Hob. 25. That the undertaking makes him a com-
mon carrier. Cro. J;ic. 262. Sid. 245. Vide head of liniliuent. So, if they are damaged.
Palm. 523. So, if he be robbed of them. 4 Co. 84. 2 Saund.SSO. [Tlie carrier is liable for
every accident, except by the act of God, or of the king's enemies. 1 Term R. 35.]

Roll. Abr. 3, 4. So, if an innkeeper refuses to entertain a guest, on pretence
r^e h ad of ^^^ house is already full, an action on the case lies against him :
Inns and Inn- ^^^ ^^ ^^ goods of his guest are stolen or lost in his house, ^c.

keepers.

Ld.Raym.2i4. [So, if a man suffer materially from the neglect or ignorance
1 Danv. 77. of a common surgeon or apothecary ; aliter, if of a person not
Iventfc^* making public profession of such business, for it was the plaintifTs

8 East, 347,11 °^" ^'^^^^y ^° ^^^^^ t" one who was unskilled; however, upon an
So, where a express undertaking, the action would lie, even in that case.]
surgeon and an apothecary broke the callus of the plaintiflTs leg after it was formed, it appear-
ing that It was done by their going out of the common course of practice, and in making an
expenment with a new instrument. Slater v. Baker and Stapleton, 2 Wils, 559.

R^lf Abr^l ^.^ * ^^^^^^ refuses to shoe my horse, or if he pricks him, an

Saund.3i2. ' ^^''on on the case lies against him. (c)

Roll. Abr. 10. So, if a farrier kills my horse with bad medicines, or by neglect
49' That'an '" curmg him ; an actt07i on the case lies, without any express
action lies promise.

•gainst a barber for shaving the plaintiff »«.g/^eirf^ et inarixficialifer. 2 Bulst. 333. Vide Hobr

211

(F) For Injuries to a Man's Person, Property, ^c, 116

211. 11 Co. 54. Saund. 512., that before SEWz. c. 4. no man was restrained from exercising
any trade; but he that performed it falsely and insufficiently was answerable in an action. [An
action cannot be maintained against a carpenter simply as such, and without any express con-
sideration, for an injury sustained in conse()uence of liis not entering upon a piece of work he
had engaged to perform. Elsee v. Gatward, 5 Term R. 143.]

If a client receives an injury by the neglect or fiaud of bis at- y^^^ ^j^
torney, an action lies(r/); as, if an attorney suffers judgment to Attorney.
go against his client by nil dicit, when he had a warrant to ('0 Winch, go.
plead the general issue {e) ; so, if in a plea of land he makes de- ^^J r 1 P n'^r
fault (^); or, if an attorney by collusion with J.S. and without gg' Ci-o, jac. '
any warrant from me, appears for me in an action of trespass at 695. Dyer,5C2.
the suit of J. S. and suffers the inquest to pass against me by de- Stile, 42g
fault, whereupon J. S. recovers against me, I may have an action ^ "^ J''a j
on the case. rr«?"wiiethe?

the judgment should not be vacated. Cro. Jac. 344. 695. sinst. 122. Keb. 89. 2koll. Abr. 724.
Where case will lie against a counsellor, vide Roll. Abr. 10. 91. ||BIackstone expressly lays it
down, " An advocate or attorney that betray the cause of their client, or being retained
neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case
for a reparation to their injured client." Books, c. 9. p. 164. Finch's Law, p. 188. Anil in
the Year-Book, 11 Hen. C. 24. 55. it is laid down, " If one retains counsel and give him his
fee to assist in the purchase of a manor, if he becomes counsel for another, or cliscovers his
council, case lies;" which is cited by Lord Hcde., F.N. B. 94. notd. And in the Year-Book,
14 Hen. 6. pi. 18., it is laid down by Paston J., " If a serjeant-at-law undertake to plead my
cause, and do it not, or plead it otherwise than I inform him, whereby I incur damage, an
action on the case lies ;" which is cited Bro. Abr. Action sur le Case, p. 69. Roll. Abr. Action
6ur le Case, 6, 7, 8., and Com. Dig. Action on the Case for Deceit, (A) 5.; and see Broke v.
Mountagu, Cro. Jac. 90. ace. Harrison v. \A\\m\ey,2\e?,.R.A?,S. per LovA Hardwiche ; and
Bradish v. Gee, Ambl. 229. In the above instances there seems to have been a breach of faith
in the counsel's conduct, and not mere negligence or unskilfulness. And in Fell v. Brown,
Peake's Ca. 96. Lord Kenyan held, that an action did not lie against a barrister for unskilfully
and negligently settling a bill in Chancery, whereby it was referred for scandal and imperti-
nence, and the plaintiff obliged to pay the costs. In this case the Court of Chancery may order
the counsel to pay the costs. Beames's Oril. 167. Mitford's Plead. 59. — In Turner v. Phil-
lips, PeakeCa. 122., where an action was brought against a counsel to recover back a fee paid
him, on the ground that he had not attended the trial. Lord Kenyan expressed himself strongly
against the action, and it was settled. This, however, is no authority that the plaintiff might
not have sued the counsel specially, showing a damage from his non-attend.ince, which
seems the proper remedy in such a case, and not an action to recover back the fee.||

[It was holden to lie against an attorney for not charging a Russell v.

person in execution at his client's suit according to the terms of Palmer,^

a rule of court, though it seemed to be rather an error of iud>j- i?o A'-^l^^'
, ' f , . _, JO See Pitt V.

ment than any actual negligence.] Yaldin, 4 Burr.

20G0. Lee V. Ayrton, Peake's Ca. 1 18.fl
II An attorney employed to purchase an annuity was held not Baikie v.
liable to his client for not advising him that the annuity was void ^^^""'ess
under the enrolment act, when the courts had not at that time de-
cided on construing the act in such a manner as to render it void.

An attorney is not liable except for crassa negligentia, not for Laidler v.
a misconstruction of an obscure rule of court. Elliott,

3 Barn. & C. 738.

If an attorney employed for the vendor of an estate, in taking Ireson v.
Counsel's opinion on the title, omit to state certain material deeds Pearman,
in the chain of tide, and wrongly state a party to be seised in fgg "'
fee when he was not so, and, in consequence thereof, the counsel
advises that the title is good, and he would have advised other-

I 2 wise

116 ACTIONS ON THE CASE.

wise had he known of the deeds omitted ; these facts are suffi-
cient to justify a jury in finding the attorney guilty of negli-
gence, so as to sustain an action.
Reeve v. Where an attorney for the plaintiff suffered the cause to

Righy, 4 Barn, be called on without previously ascertaining whether a ma-
& A. 20'-'. terial witness whom the plaintiff had undertaken to bring into
court had arrived, in consequence of which the plaintiff was
nonsuited, it was held, that iu an action for negligence it was
properly left to the jury to say whether he had used reasonable
care in conducting the cause; and the jury having found in the
negative, the court refused to disturb the verdict. |l

(G) Where an Action on the Case will lie for a Nui-
sance, and therein of the Inconvenience of multiply-
ing Actions.

Vide head of TT is clearly agreed, that for a common nuisance, which is an ||
Nuixances, offence against the public, either by doing a thing which

R ii Ah ^RR^* ^^^^ ^° '^^ annoyance of all the king's subjects, or by neglect-
110. 2 Roll. '"S ^° ^^ ^ thing which the common good requires, 7io action on
Abr. 140, 141. the case will lie; for this would create a multiplicity of actions.
Moor, 180. one man being as well entitled to bring an action as another;

1 ri°' }^l and therefore in such cases the remedy must be by indictment
9 Co. 113. 1 • f 1 1 • "^ ^

2 Brownl. 147. ^t the suit oi the kmg.

Vaugh.341. Cro. Eliz. 664. 3Mod.294. Garth. 191. 451. Ld. Raym. 486. Salk. 1 5. pi. 1 7.

Co. Litt. 5Q. But, if by such a nuisance I suffer a particular damage, as, if

Keb 847 '*^^' ^y stopping up a highway with logs, S^c. my horse throws me, by

s Jones, 157. which I am wounded or hurt, an action lies.

Vide the authorities, tupra. Vide Garth. 191. 451. Salk. 15. pi. 17. what shall be such a spe-
cial damage as will maintain the action.

Dev^'' ^' JJ"^" action does not lie by an individual for an injury sus-

2 Te°m R.667 *^'"^^ ^" Consequence of a county bridge being out of repair.

Bush V. If A. or his servants, in repairing his house, place a quantity

Steinman, of lime in the road whereby i?.'s carriage is overturned, A. is

404?'" answerable in an action on the case.

Matthews v. So, if the servants of a water-works company, in laying down

West London pipes, leave rubbish in the street, without any light or watchman

Water-works to warn passengers, and a coach driven by the plaintiff is thereby

5 Sp?403 overturned, and plaintiff's leg broken, the company are liable to

Jones V. Bird, »« action.

5 B. & A. 837.; and see 1 Stark. 189. ; but see Harris v. Baker, 4 Maule & S. 27.

H^Sam ^°' ^^ ^^ °^"^^ ^'^ ^ ^^"^^ ^° "^^ properly fence in his

3 Camp. 398. ^'^^^ ^° ^^ '°.^^ ^^^^ ^"^ passengers, and the plaintiff falls down
the area and is hurt, the owner is answerable ; and it is no excuse
that when he took the house, and as long back as can be remem-
bered, it was in the same state.
Haraond v. So, if the owner of a vessel which is sunk in a navigable river

f ?^°' c, . J^Slect to place a buoy over the wreck, and, in consequence, the
1 uuDp.515. barge of another strikes on it and is damaged, he is liable to

his

(H) For Conspiracy f oppressive Prosecutions^ <§'c. 117

his action, and this although he may have placed a watchman
near the spot to point out the danger. ||

Also, an action lies for continuing a nuisance; as, where for Salk. lo, pl.3.
erecting a nuisance 2 die Febr. the defendant pleaded a prior Carth. 455.
action brought for erecting a nuisance 20 die Martii, and a re- ^^- R^ay™- 370.
covery thereupon, and averred these to be the same nuisance
and erection: on demurrer the plaintiff had judgment; for
though he cannot have a new action for the same erection, yet
he may for continuing the same nuisance.

(H) Where an Action on the Case will lie for a Con-
spiracy, and oppressive Proceedings in Prosecutions
and Suits at Law.

TT seems agreed, that for a false and malicious prosecution for RolI.Abr. 112.

any crime (a), whether capital or not, by which the party Several cases

may be put in peril of his life, suffer in his liberty, reputation, ^^ this pur-

^ /7\ ^' /u • 4. c -i c pose, (a) How

or property (6), an action on the case m nature or a writ ot con- \^^ ^^^^ prose-

spiracy lies ; whether the prosecutor proceeded so far as actually cution must be
to exhibit an indictment, on which the party was acquitted, or false and raali-
jjq|.^ cious and with-

out probable
cause of suspicion, wrfe Cro.Eliz. 70. 134. Leon. 107. Kelw. 81. Moo. 600. Danv. 212., and
Salk. 15., where per Holt C. J., that this action is not to be favoured, because it deters men
from prosecuting ; and, therefore, if the grand jury find the bill, the defendant shall not be
obliged to shew a probable cause, but it shall lie on the plaintiiF's side to prove an express
rancour and malice. Qucere, How far the modern practice of granting a copy of the indict-
ment upon an acquittal, makes it necessary that such copy should be produced, in order to
prove it a false and malicious prosecution. And t«V/e Carth. 416. Ld. Raym. 374. 12 Mod.
208.211. 5Mod. 394.405.408. [A copy of the record of the acquittal granted by the court must
be produced in order to support an action for a malicious prosecution of a felony ; but in the case
of misdemeanors the practice is different. 1 Black. R. 385.] Hit seems not sufficient to produce
the original indictment, because it does not prove the caption. 2 Esp. Ca. 57. See 10 Barn. & C.
70. If the prosecution was before a magistrate the proceedings should be produced ; or if they
have been lost secondary evidence should be given. 2 Barn. & C. 496.|| {b) It has been holden,
that for exhibiting an indictment, which only affected a man's property, no action lay if the
indictment were insufficient, or the bill found ignoramits by the grand jury. Vide Danv. 208,
209. several cases put jaro. and con. And Salk. 15. in margine., that in an action on the case for
maliciously procuring //. to be indicted for exercising the trade of a badger without licence,
'pcr quod he was put to great expense ; in which it was agreed, that the indictment was insuffi-
cient; it was resolved by Parker C.J. and the whole court, upon great consideration, that
there was no reason for this diversity between a malicious prosecution upon a good indict-
ment and upon a bad one; and that this action will lie as well for damages by expense, as by
scandal or imprisonment, though the indictment be insufficient. Hil. 12 Ann. Jones and Gwin.
10 Mod, 148. 214. [Gilb. Gas. 185. Stra.691. 977. Ca. temp. Hardw. 54. 4 Term.R. 247. ace.]
||This was confirmed in Pippet v. Hearn, 5 Barn. & A. 634. The mere return o( ignoramus, where
the indictment contains no scandal, and where the defendant has suffered no imprisonment, no
special damage, will not of itself support the action without proof of express malice. Byne v.
Moore, 5 Taunt. 187. Sed vide 4 I3arn. & C. 25. Nor can malice be inferred so as to sustain
the action from the mere fact of the plaintiff having been acquitted for want of the prosecutor's
appearing when called for. Purcell v. M'Namara, 9 East, 561.; and see 14 East, 502. 1 Camp.
204. If some of the charges in the indictment are maliciously preferred, though others are
not so, the action lies. Reed v. Taylor, 4 Taunt. 616. And it is no answer that the defendant
did what he did by the advice of counsel if the opinion was ill-founded, or if the facts were
improperly stated to counsel. Hewlett v. Crutchley, 5 Taunt. 277.; and see 2Barn. &C.
695.11 [^'^6 action may be brought by a husband for the expense of defending his wife.
2 Stra, 977.]

I 3 [If

118 ACTIONS ON THE CASE.

Canh.4i6. C^^ '^® action be brought against several, and one only be found ;

Bull. Ni. Pri. guilty, it is sufficient; for there is a great difference between the ,
M. But see a action on the case in the nature of conspiracy, and the writ of
doubt in this conspiracy at common law; for in this case the damage sustained .
cane by Suund- • ^,' -^ i r^i »•
en, where the is the ground of the action. ,

declaratioo stated the injury to have been committed per contpb'ationem inter eo» habittttiu-;
Saund. 230. In actions for prosecutions or oppressive proceedings, it is indispensably neces-
•ary to make out two grounds: malice and want of probable cause. 4 Burr. 1974. From the
latter the former may be implied, but not e conveno. ||In general the plaintiff must give some
evidence of the want of probable cause ; but as this is evidence of a negative, very slight evi-
dence is sufficient to call on the other party to shew the affirmative. See Cotton v. James,
1 Barn. & Adolph. I33.|| Where there had been a condemnation of goods by sub-commissioners
excise for not entering and paying the duties, which was afterwards reversed by the commis- \
sioners of appeal, it was adjudged that an action for a malicious prosecution did not lie against -
the informer, for the judgment of the sub-commissioners shewed that there was a foundation
for the prosecution. 1 \Vils. 232. 1 Term R. 500. ||See 1 Barn. & Adolph. 133.|| Inactions of
this kind the plaintiff must allege that the original suit, wherever instituted, is at an end.
Dougl. 205. ; for otherwise the point would come to be tried too soon and disorderly. Yelv.
117., it must be legally at an end; and, therefore, in an action against a justice for an illegal
commitment on a supposed charge of felony, the court held an allegation that the plaintiff
was discharged from bis in)prisonment, to be insufficient; because there are various ways by
which a discharge may be had, without putting an end to the suit : it ought to have been shewn
how dischayged. 2 Term R. 225. Stra.114. Hob. 206. 266. 10 Mod. 245. So, in an action
for maliciously holding to bail, it must be shewn what is become 'of the original action.
iSalk. 15. Dj^. 285. If it has been abandoned, it should seem that an action will lie, for
abandonment is an indication of its being false and hopeless. W. Jones, 93. ^Sed qu. and ;
vide Sinclair v. Eldred, 4 Taunt. 7.|| So, where the plaintiff suffered himself to be nonsuited. '
Bull. Ni. Pri. 13. (4th edit.) But a nolle prosequi by the attorney-general is not such a
termination of a criminal suit as will authorize an action. 6 Mod. 261. See 10 Mod. 219.
Gilb. ('as. 185., &c. Nor is a stet processus. Wilkinson v. Howel, 1 Moo. & Malk. 495.||
Qu. Whether the defect of stating the original action to be determined, may not be cured by
a rerdict or plea in bar? Rayra. 418. 2 Keb. 456. 753. 5 Keb. 781. Saund. 229.

Austin V. II Where there are mutual dealings between two parties, and

^R'"*'"xr r ^'^"^^ known to be due on each side of the account, if one party

i39^™and see *^^^^^ ^^^^ °^''^^' ^°^ ^''^ amount of one side of the account, with-

5 Barn. & A. ^."'^ gi^'^o credit for what is due on the other, the arrest is mali-
513. ; sed vide cious and without probable cause, and an action may be supported.

2 Camp. 594.

Nicholson v. Where A. arrested B. on the 10th December, and was ruled to

4&Iin''&C ^5^'''^*"^. "" ^I'e 17th., and filed a declaration on the 24-th, and

2j "• • discontinued the action on payment of costs on the 31st, it was

«Dow.&R.i2.j ^^^^^f t^at the circumstances were sufficient jprima facie evidence

and see Went- of malice and want of probable cause.

worth V. Bulien, 9 Bam. & C. 840.

Berry v. If the sherifTs officer having a writ against A. send him a

6 ftJ!r& C ^^'^^'^^ *° ^^ ^ t™^ ^" call and give bail, and A. accordingly

528. ; and see *"t"^? ^"^^ ^'^^ ^^''' ^^'^ ^^ "° ^^'^'^^^ 5 and an action for a

2 New R. 211. malicious arrest does not lie, although the party suing out the
1 Moo. fi writ have no cause of action.

Malk. 244. ; sed vide sCarr. & P. 605.

MwkiSo^h A^^ • ^^f defendant can show that in making the arrest, he acted

3 BwD. & c! ^fJ^f on the opinion of counsel of competent skill and ability,
693.; and sec "."J' believed that he had a good cause of action against the plain-
ly*** ^** ^ u ^°^^^ ^ ^°°^ defence to an action for a malicious arrest.
S02. But where it appeared that the party was influenced by an indi-
rect

(H) For Conspiracy, 02)presshe Prosecutions^ ^c. 119

rect motive in making the arrest, it was held to be well left to the
jury to say whether he acted bona Jidc on his counsel's opinion,
and beheved that he had a good cause of action.

If the plaintiff' in an action for malicious prosecution, prove a £)avis v
case which in the opinion of the judge shows that there was no Hardy,
probable cause for the indictment, and the defendant then calls a 6 Bam. & C,
witness, who proves an additional fact, which in the judge's ^^^'
opinion shows a probable cause, and there is no contradictory
testimony, and nothing in the demeanour of the witness to im-
peach his credit, the judge is not bound to leave the fact to the
jury, but may act upon it as a fact proved, and nonsuit the
plaintiff.

The plaintiff may maintain the action, although he has ob- p, , ,
tained a criminal information. Ij Barlow

1 Ry. & Moo. 275.

If a justice of peace malitiose et invide macJiinans J. S. de bonis, Windham v.
nomine, fama et vita deinrivare, directs his warrant to several con- CI ere, Leon,
stables to apprehend J. S. alleging, in his said warrant, that J. S. *87. Cro.
was accused before him for steahng an horse ; whereupon he is ^ wp|?^ *
arrested, and detained till he enters into bond for his appearance ; of Windham
whereas he was not accused, nor stole such horse ; an action will v. Clere is not
lie; for though the justice (a) is excused when upon a false ac- jaw; for the
cusation he sends out his warrant, yet it is otherwise where he ""i;"ediate act
makes it out without any accusation at all. (b) ment pro-

ceeded from the justice ; and therefore the action should have been trespass, and trespass only ;
but where the act of imprisonment by one person is in consequence of information from ano-
ther, there an action on the case is the proper remedy, because the injury is sustained in con-
sequence of tlie wronjjful act of that other person. Morgan v. Hughes, 2 Term R. 231.] ||See
2 Chitt. 504, 1 Dow. & R. 97.11 (b) If a justice of peace procures some witnesses to appear
and give evidence upon an indictment, that is but his duty ; and though his name was indorsed
upon the indictment to give evidence, yet this made him no prosecutor, and so no action lies
against him for a malicious prosecution. Vent. 47. 2 Keb. 572.

[An action on the case is the proper remedy against excise Bootv.Cooper
oflficers who enter a house under a legal warrant to search for ?^"^ another,
concealed goods, when there are none.] ^' ^ 2 Term

R. 535. See the case of Bostock v. Saunders and others. 2 Black. R. 912. 3 Wils. 434.
where the Court of Common Pleas, after hearing two arguments, held, that trespass would lie
in such a case.

II So also for maliciously suing out a commission of bankruptcy Cotton v.
or lunacy. II James,

I Barn. & Adol. 133. 1 Gow. Ca. 50.

An action on the case lies against churchwardens, for that they VideRoW.
falsely and maliciously, to the intent to draw the plaintiff within Abr. 112. and
the censures of the ecclesiastical court for adultery, presented him ^^ r c^se''^'ill
there, upon a fame of living in adultery with A. S. not lie for an

ecclesitistical scandal. Sed qu. If it will not lie for the expense, trouble, and vexation attend-
ing defence ?

If yi. was churchwarden of J5. and at the end of the year gave Rayra.4i8.

up his account to his successor, and vet yl. is falsely and maUci- F, 7?"^^. ^f^',
1 -^ 1 I i-w . 1 T-. 1 • . i*v-i 1 . b.C adjudged,

ously cited byZ). into the Ecclesiastical Court to render an account, ^i^^ plaintiff

and at the request of Z). he is excommunicated for not rendering declaring that

J 4, lip the defendant

120 ACTIONS ON THE CASE.

knowinp the "P ^»s account, an action lies against D. notwithstanding this
plaintiff had sentence was given by the judge. .„^ ,„s

before made up his accounts, which were approved by the parish, &c. Vide Hardr. 194, 195.
S. C and a long argument.

Ackcrlcy v. [j An action on the case cannot be maintained against the judge

** "m'Tx « of an ecclesiastical court, for excommunicating the plaintiff for
3 Maule & b. j|i5oi,eying a citation of the court, if the judge has jurisdiction of
the subject-matter, and if no malice appears, notwithstanding the
citation by which the plaintiff was cited be void, and the proceed-
ings thereon have been set aside on appeal.
Beaurain v. But if the judge excommunicate a party for disobeying an order

Sir W. Scott, which the judge has no authority to make, or if the party has not
3 Camp. 387. ^^^^ previously served with a citation or monition, or had notice
of the order, the action lies against the judge, though there is no
pretence of malice. ||
Salk. 14. But it must be observed, that there is a great difference between

Hob^266° a false and malicious prosecution by way of indictment, and bring-
3 Leon. 138. »ng a civil action ; for, in the latter, the plaintiff asserts a right,
Cro. Jac. 432. and shall be amerced pro /also clamore ,- also the defendant is
entitled to his costs; and therefore, for commencing such an
action, though without sufficient grounds, no action on the case
lies.
Sid. 424. But, if the plaintiff declares, that he being arrested in Middle-

s Keb. 546. sex at the suit of the defendant, and the defendant, intending to
Lcy^275 detain him in prison, /also et malitiose dixit to the sheriff of Mid-

3 Lev. 21 1. dlesex, that the plaintiff owed him 500/. requiring him to take
S. C. cited. bail accordingly, per quod he was detained in gaol several days ;
^Hj * *■ ^' ^' ^"^^ action lies, because of the special damage sustained by the
crewhsTerm P^'^^'^y ^n this false affirmation.

R, 185. S. P. IJWthout the ingredient oi malice this action cannot be supported: moTtce
must be averred and proved. Scheibel v. Fairbain, 1 Bos. & Pull. 588. Gibson v. Chater,
2 Bos. & Pull. 129.- With that ingredient, mixed with falsehood, it will lie for holding to
bail in an inferior court :is well as in the courts of Westminster Hall, either where the inferior
conrt has not cognizance of the cause, the defendant knowing that it has not, Goslin v.
Wiicock, 2 Wils. 302. or, where the sura actuidly due would not authorize an arrest in it.
Smith V. Cattle, Id. 376.H But it is not enough to declare generally that he brought an action
uainst him ex malitid et tine causa, per quod he put him to great charge, &c. but he must shew
tne grievance specially ; jjhe must shew that the original suit is terminated ; judgment of
non pros in the original action is not of itself proof of malice. Sinclair v. Eldred, 4 Taunt. 7.\\
Saund- 228. Vent. 12. 19. 86. Danv. 196. 1 Salk, 15. pi. 6. Ld. Raym. 503. 12 Mod. 273.
||2 Term R. 232.1|

R \'i* Ah*'' ^^ ^ Stranger brings an action against A. in the name of J. 5.

S.V Marih^' ^^'^°"^ the consent of J. 5. an action on the case lies against
47 8. P. Cro. liim-(«)

t • ' ^«?* ^°? ^'" *^^'"*^ ^^y ^ remedy upon the 8 Eliz. c. 2. But qiuere where there are several
plaintiits, and one of them gives his consent. Cro. Eliz. 236. 2 Sid. 162. If upon an issue
botween A. and B., a stranger that was not returned of the jury, causes himself to be sworn
m the name of one that was returned of the jury, and a verdict is given for B., A. may have
»n acuon upon the case against the stranger. March, 81.

Skelind''* ?^ ^' ^"^^^^ ^ petition to a committee of parliament, ap-

Kh^. Mod.58. pointed for the examination of public grievances, and therein
S. C. 2 Kcb. charges 2?. being a doctor of law, and vicar general to the Bishop
361. 4«2. 466. of L. with several great offences, as extortion, S^c. in his office;

and

(I) Where Case lies, though there is another Remedy. 121

and for the better manifestation of these grievances, causes the g^g gg4 goj,
said petition to be printed, and to be delivered to several of the 832. S.C.Lev.
members of the said committee ; yet no action upon the case lies ; 240. S. C. Sid.
for this printing and delivering of the case as aforesaid, is accord- ^^' . j
ing to the order and course of proceeding in parliament. Libel znASlan'

der.\( [Aliter, if it had been dispersed abroad before it had been presented. Hardr. S. C.
2 Keb. 832. 1 Hawk. P. C. c. 73. $ 8. 12. 15. Case will not lie for words spoken or sworn in a
legal and judicial way. 2 Burr. SIC] If a man brings a writ of forgery against a peer, &c. and
the defendant is found not guilty, yet shall he not have scandalum magnatum, and lay the charge
contained in the writ to be a scandal. Roll. Abr. 34. Moor, 38. Hetl. 55. Hob. 266. No
action lies against a witness for perjury, in giving his evidence in a cause. Vide Danv. 195.

In case, the plaintiff declared that the defendant maliciously Carth. 189.
levied a plaint in London, and prosecuted the plaintiff thereon, lempiev. lui-
ubi revera the cause of action did arise in D. in Kent, out of the show. 194.
jurisdiction of the court o^ London; after verdict for the plaintiff, 254. Cases,
the court inclined that the action would not lie ; for the plaintiff S. R. 4 S. C.
might have pleaded to the jurisdiction, and if they had refused ?:"' noresolu-
his plea, he might have applied for a prohibition. said' that it

was fit to have the opinion of all the judges ; for that such action was never held to lie till
^or^A's time. Vide \ent. 669. 2 Jones, 214. Hob. 205. Cro. Jac. 667. Sid. 465. Sand.
221. 4 Co. 14. No action lies for suing an attorney in an inferior court; for who knows
whether he will insist on his privilege, and if he does, he may plead it. Mod. 209, 210. per
cur. [It is now settled that an action of the case will lie for maliciously suing a person in an
inferior court, when that court has no jurisdiction of the cause : and the Court of Common
Pleas, after due consideration, refused a new trial in such a case, though the declaration did
not allege, as it ought to have done, that the defendant knew that the inferior court had
no jurisdiction. 2 Wils. 302.]

[An action on the case is maintainable for a malicious abuse of Sutherland y.
delegated authority of the highest nature ; as, where the governor Murray, Sit-
and vice-admiral of one of his majesty's islands suspended the ,^;^^/er after"
judge of the vice-admiralty court from the exercise of that office, Easter, 1783.
maliciously and without any reasonable cause. cor. Eyre B.

, , , . 1 Terra R.538.

But this action will not lie for a malicious prosecution before a Johnstone v.
naval court martial, for an offence cognizable therein (a) : nor Sutton,
for delaying to bring an officer under arrest to a court-martial, it 1 Term R. 493.
being a military offence. Nor will it lie (b) against a command- > \ 7 th"'
ing officer for an improper exercise of his power, Jlagrante hello, defendant has
and out of the British dominions.] not been tried

for it by a
court-martial, (b) Barwis v. Keppel. a Wils. 314.

11 An action on the case does not lie to recover damages against r>.,„.„„ „
11 r. 1 1 • • rt» • • • „ ^ ^ I'urton V.

the lessor ot the plaintm in a vexatious ejectment. 1) Honnor,

I Bos. & P. 205.

(I) Where Case will lie, though the Party injured has
another Remedy.

TF one slanders my title, whereby I am wrongfully disturbed Allen, 3. ||5Icrf

in my possession, though I have remedy against the tres- ^^. V'cars v.
passer, yet I may have an action against him that caused the g ^^ / ^^^
disturbance. 2 Bos. & Pull.

284. and tit. Slander^ C.||
If a man stops a water-course, per quod his neighbour's ground Dyer, 250. in

l» ACTIONS ON THE CASE.

margitie. is surrounded, his neighbour may have an assize, or action on

Leon. 247. the case, at his election.

verts totum curtum aqiue from my water-course to my mill, though I may have an assize tor
this, yet 1 may have an action upon the case, at uiy election. Roll. Abr. 104.

Ley 130 by ^^* copyholder in fee surrenders a messuage to the use of one
Penlerton for life, the remainder to another in fee, and the defendant (the
ami Lfvinz husband of the tenant for life) pulls down part of the messuage,
cord. Wind- ^^^ |jg j„ (.he remainder may have an action on the case against
haiH and . .

Charlton. And '^^^' ^ , ,

per Fcmbcrlon and Levinz, where Coke says, that before the statute of Gloucester the lessor
was without remedy for waste done by his tenant ; that must be intended according to the
subject matter of which he was speaking, scUicet, that he had no remedy by action of waste :
and Femberton said, that without doubt at this day the lessor may wave his remedy by action
of waste, and bring an action on the case.*

• Where the estate of any one in remainder or reversion is injured by the tenant in pos-
session or any other person, an aclion on the case, in the nature of an action of waste, may be
maintained.

Kinlyside v. [An action on the case in the nature of waste, as well as an

Thornton and action of covenant, will lie against a tenant for years after the

2Bi2r.iiii. ^'^P'''^^'®" "^^"^ '^^™-^

R 11 Ab 108 ^^ cestui que use at common law had requested his feoffees to
s Bulst. 336. make a feoffment to J. S. and they had refused, no action on the
Roll. R. 125. case lay against them, but his remedy was in chancery only.
Carth. 224. If a parson is guilty of dilaj^idations, and after takes another

3 Lev. 268. benefice, by whicli his former becomes void, his successor may

^*^*iio ^^* have an action on the case ajjainst him ; thouf^h it was objected,
116. See *u ^ I • A •**!,• V 1 *

2 Term R. '"^^ "'^ proper remedy was in the spiritual court.

630. Young V. Munby, 4 Maule& S. 183. Browne v. Ramsden, 2 Moo. Gia.]} [This action
lies for the neglect of repairing a prebendal \\o\ise by a succeeding prebendary against the pre-
decessor, or his personal representative, as well as in the case of parochial preferments. Rad-
cliffe V. D'Oyley, 2 Term R. 650. 3 Wooddes. 206. n,] jjln Gibson v. Wells, 1 N. R. 90. it is
holdea that case will not lie for permissive waste.|| Where an action on the case lay for a
legacy in CVomu;c/fs time. Raym.25. 2Sid. 21. 85. Keb. 116. jjAn action at law does not
lie for a pecuniary legacy, Decks v. Strutt, 5 Term R. 690. ; but lies to recover a specific chattel
bequeathed, after the executor has assented to the bequest. Doe v. Guy, 3 East, 120.1|

Roll. Abr. no. \{ A. and his predecessors have used time out of mind to find
wcre'a public ^ chaplain to sing divine service, and to perform the sacraments
chapel. Roll. ^"^ sacramentals in the chapel of B. within his manor of D. for
Abr. 1 10. Cro. B. his servants and family, and he does not find a chaplain ac-
EUz. 664. cording to the custom; B. may have an action on the case against

bid. 34. An Yiim. ^ ^

action on the

case lies against a parson for refusing to give J. S. the sacrament, because a man is bound to
receive It upon a penalty. Per Keb. 947. ^\A. oA. dubitatur. Against a bishop for not taking
caution of a party excommunicated. Raym. 226. 2 Inst. 623. Against an ordinary for
refusing to grant administration. Carth. 126. [Against an archdeacon for refusing to induct.
F.N.B. 47H. Fortesc. R.291.]

SmSr' • ^^^^ ^^^^ ^'^ ^^^ ^^^^^^y ^"^ maliciously suing out a commis-

2 WUs. 145. ^^°" °^ bankrupt, though the chancellor has power under the

3 Burr. 1418. statute of 5 Geo. 2. to give 200/. damages.]
||Sce Cotton v. James, 1 Barn. & Adol. 128.|1

Themen\n*. ."^' 1'®^ "P°" *^^ ^'^^"^^ of 6 Geo. 1. c. 16. § 1. by the part^
grieved to recover damages against the inhabitants of the adjoin-
ing

(K) Where Case lies, though Wrong-doer he punishable, 123

ing township for trees, coppice, and underwood, unlawfully and habiting the
feloniously burnt by persons unknown; though the clause directs u^Ij ^^e 1 1
the party grieved to recover his damages in the same manner nEast 349.'
and form as given by the statute of 13 E. 1. st. 1. c. 46. for
dikes and hedges overthrown by persons in the night; upon
which the usual course of proceeding has been by the writ of
Noctanter. ||

(K) Where Case will lie thoiigh the Wrong-doer be
punishable criminally.

TT seems to be the better opinion of the books, that a person g^jjg ^^^^

guilty of felony, and pardoned, or burnt in the hand, may Yelv. 89, 90.
be proceeded against in a civil action at the suit of the party Jones, 147.
injured ; for when the party is prosecuted, there can be no (a) (}^^' ^'**'
inconvenience in allowing the action, and the criminal prosecu- ^-q^ ^^^ ^^ '^'
tion ought to be no bar to it; for why should he not answer in brought whilst
damages to the party whom he hath injured, as well as be made the party is
an example of for the sake of the public, whom he hath """ei" indict-
/v. J J o * ment for the

offended.'' same crime,

for if that were allowed, it might hinder all exemplary punishment. Stile, 346. [See 4 Term
R. 332, 333.] ||After an acquittal of the defendant for a felonious assault on the plaintiff by
stabbing him, the plaintiff may maintain trespass to recover damages for the civil injury, if he
be not shewn to have colluded in procuring the acquittal. Crosby v. Leng, 12 East, 409.||

In case against husband and wife, the plaintiff declared that Sid. 375.
the wife malitiose^ 8fc. affirmed herself to be unmarried et strenue ^?f^^ ^
requisivii him to marry her; to which affirmation he giving credit, ^^^ ^^J g q
married her, being then the defendant's wife, by which he was 2Keb.399.
put to great charge, injured in his reputation, and greatly troubled And note ;
in his conscience ; and the court held, that the ground of this PfT ^"««'^'^
action being the conversation and contract of the wife, could not does^not'lie •
bind the husband. because the'

marrying of the second husband is felony. [See St. 1. J. 1. c. 11. That if seven years have
elapsed without the former husband or wife having been heard of, the guilt of felony is not in-
curred. However, where a man falsely pretending himself single, only solicits, but does not
actually contract a second marriage with the plaintiff, and she sustains special damage in con-
sequence of such deceit, as, by rejecting other offers, there can be little doubt of her right to
sue this action. 3 Wooddes. 201, 202.]

But, where the plaintiff declared that she was a virgin of good Skin. 1I9.
name and fame, and sought to for marriage by J. S., that the
defendant, pretending himself to be a single person, made love
to her, and married her; when in truth he was married to another
woman, ^c. whereby she became of less credit, Sfc the court held
that the action lay.

[ 124 ]

AFFIDAVIT.

AN affidavit is an oath in writing, signed by the party deposing,
sworn before, and attested by him who hath authority to
administer the same. As most motions and orders of court are
<rrounded on affidavits, it seems impracticable, and indeed un-
necessary, to instance in what cases they are to be made use of,
or when they may be said to be defective, short, or evasive ; this
being a matter of practice, and few things relating thereto being
thought worth reporting.

We shall, however, under this head, set down what we find
relating to

(A) The taking and filing of Affidavits.

(B) Where an Affidavit is necessary.

Style Pract.
Rt^. 78.

S9Car.2. C.25.
Byihei6&i7
Car. 2. c. 9. the
chancellor of
the duchy of
Jjoncatter may
empower per-
sons to take
afiidavits. [By
the 4G.3.
c 21. a similar
power is giren
to the chan-
cellor and jus.
tices of the
Court of Pleas
in the county
Palatine of
Jiurham].

(A) The taking and filing of Affidavits.

II (See Tidd's Practice, c. 19. (9th ed.) and Beames's Ord.)|l \

A FFIDAVITS were only to be taken by some judge of that
court in which they were to be made use of. But now,
" By the 29 Car. 2. c. 5. the chief justice, and other the justices
" of the Court of King's Bench, or any two of them, whereof '
" the chief justice to be one for that court ; the chief justice of
" the Common Pleas, and the rest of the justices there, or two of
" them, whereof the chief justice to be one for that court ; and
" the lord treasurer, chancellor, and barons of the Exchequer,
" or two of them, whereof the lord treasurer, chancellor, or
" chief baron to be one for that court, may by commission or
" commissions under the seal of the said respective courts, from
" time to time, as need shall require, empower persons in the
*' several counties to take affidavits concerning any thing de-
" pending or concerning any proceedings in the said courts, as
" masters in chancery extraordinary use to do ; and any judge
" of assize in his circuit may take affidavits concerning any
" thing depending, 8[c. as aforesaid ; which affidavits shall be
'* filed in the several offices of the said courts, and be made use

« of

(A) The taking andJiUng qf Affidavits* 125

" of as othei* affidavits taken in the said courts ; and all persons
" forswearing themselves in such affidavits shall incur the same
" penalties as if they had been taken in open court ; the persons
** taking such affidavits shall receive only Is. for so doing, be-
** sides the king's duty, which duty shall be paid to the proper
" officers in the said courts, before such affidavit be there filed
*' or made use of."

II By rule of H. T. 3 & 4< G. 4'., no commission for taking affi- i Barn. & C.
davits can be issued to any person practising as a conveyancer, 288. 2 Dow.
unless such person be an attorney or solicitor. *''^'

And by rule of E. T. 4 G. 4., attornies and solicitors of the i Barn. & C.
great session in Wales, and the counties palatine of Chester, ^^ fvo **
Lancaster, and Durham are within the above rule.||

[By a rule of the Court of King's Bench E. 31 G. 3. it is HSee 8 Price,
ordered, " That where any affidavit is taken by any commis- ^^^•''
*' sioner of that court made by any person, who from his or her
*' signature appears to be illiterate, the commissioner taking
*' such affidavit shall certify or state in the jurat, that the affi-
*' davit was read in his presence to the party making the same,
" and that such party seemed perfectly to understand the same,
" and also that the said party wrote his or her signature in the
*' presence of the commissioners taking the said affidavit."

Affidavits taken before a person who is solicitor in the cause 3 Atk. 815.

are not allowed to be read either at law or in equity. 5TermR.405,

^ •' H9 Price, 88-11

||Nor can affidavits be received which are sworn before the „ Vaisev
attorney of the party, or his partner. i W\ce, lie.,'

Hopkinson v. Buckley, 8 Taunt. 74. ; and see 5 Moo. 325,
But an affidavit may be taken before the clerk of the attorney 8 Term R. 638.
in the cause, if the clerk be empowered to take affidavits.

It may be taken before the party's own attorney, if in the pi
country, if the agent in town be the attorney on the record. Cooper,

5 Taunt. 89. ; and see 8 Taunt. 435.

Affidavits not entitled " in the King's Bench," and sworn be- R- 1; ^^^^>
fore A. B. a commissioner, Sfc. without stating him to be a com- Ir^^Kennett
missioner of that court, were not allowed to be read ; but &c, y. Jones,'
affidavits sworn in court or before a judge of the court, though 7TermR. isy.
not entitled " in the King's Bench," were read.||

If affidavits taken before commissioners in the country, ac- 2 Salk. 46i.
cording to the above statute, be expressed to be in a cause P ^"
depending between A. and B. and there be no such cause in
court, they cannot be read, because the commissioners have no
authority to take them, and there can be no perjury; otherwise,
if there be a cause in court, and this concerns some collateral
matter.

[If an affidavit in a cause have no title, it cannot be received, 2 Term R. 644.
though the adverse party is willing to wave the objection.]

II So if . be not entitled in any court, it cannot be received. Osbom v.

*^ Tatteson, 1 Bos. &Pull. 271.

An affidavit to support a rule nisi for staying proceedings on Roberts v.
a bail-bond, should be entitled in the action against the bail. Giddins,

But,

12G AFFIDAVIT.

1 Bos. & Piill. But, where no action against the bail is commenced, as, if a mo-
337. tioii be made to cancel the bail-bond, the affidavit must be en-

titled in the ori<rinal action; for unless it be entitled in some
action, no perjury can be assigned upon it.||
iStra.704. An affidavit upon a motion for a certiorari to remove an

indictment is properly entitled, " t/ie King v. A. B, (the de-
fendant.) "
Bevan v. The affidavits on which to apply for an attachment for dis-

Bevan.sTerm obeying an award, where the submission is made a rule of court

R, 601. The under the statute, need not be entitled in any cause ; but those
same practice • .

prevails in m answer n.ust.

affidavits to move for informations. Rex v. Pierson. Andr.SlO. sStra. 1107. S. C.
Bainbridgev. || But neither need be entitled on a motion to set aside the
Houlton, award. II

5 East, 21. "

Wood V. Affidavits for attachments in civil suits are to be entitled with

Webb, 3 Term \]^q names of the parties, but as soon as the attachments issue,
R. 25j. bo, 1 ^j^g j.j jg ^^ ^g named as prosecutor.

S ranted, o r

oiigh not issued. 7 Term R. 439. Rex v. Sheriff of Middlesex, 6 Term R. GO. Whitehead
V. Firth, 12 East, 165. ||Siich title is sufficient without naming the cause, though it is conve<
nient to do so. 5 Barn. & C. 389.|| '

Rex V.Robin- ||An affidavit on a motion for leave to file a criminal inform-
rT'^^^Coi" ^'^'"" ought not to be entitled; and if it is, it cannot be read.
6TeriDR.387. ^"^ ^'^^ affidavits produced on shewing cause against the rule

may or may not be entitled ; all affidavits made after the rule is

made absolute mu.st be entitled.
Ex parte In moving for a rule nisi for a certiorari the affidavit must

6 c'^267^"'^"" "°' ^^ entitled in any cause.

Kelly V. Wro- Affidavits in support of a rule to set aside proceedings on a
ther, 2 Chitt. bail-bond may be either entitled in the action on the bond, or in

109. Sedvide ^j^^ • j^^
1 Bmg. 142. o

7 Moo. 600.

Gandell v. Where a motion is made in a cause removed to the K. B. by

Rogier, ^rit of error, the affidavit must be entitled in the cause in error.

4 Bam. & C. 862.

Sowerby V. I" entering up judgment on an old warrant of attorney, the

Woodroffe, affidavit may be properly entitled in a cause.

1 Barn. & A. 567. r r j

K^ar" T*^^ Christian names as well as surnames of the parties must

7 Term k 661. ^ inserted in the title of an affidavit produced to shew cause
against a rule.

Steyner v. An affidavit, the tide of which styles the plaintiff « assignee,'*

Cottrell, without more is bad.

5 Taunt. 377.

Doe V. Want, ^"^^ ^° ^^^° ^^^^^ names of all parties are not stated. A. B.
s Moo. 722. " ^nd others," is insufficient. ||
Bullman v. Callow, l Chitt. 727.

2 WUs. 571. Where an affidavit has been read and filed, it cannot be taken

off the file.

l?TvL'n'of^' Affidavits made for one purpose may occasionallv be used for
iermK..85. another. Thus an affidavit taken before a judge" at 7iisi prius

upon

(B) Where an Affidavit is necessary. 1^7

upon an information out of the King's Bench, and afterwards

returned into that court and filed, was admitted as a ground on

which to grant another information, the court considering the

authority of the judge at nisi 2^^'ius in that case as an emanation

of their own. So, affidavits upon wliich a defenilant hath ob- CphmoU*

tained his discharge in one cause, have afterwards been admitted 4TermR.285.

for a similar purpose in another cause.

||The courts of this country will take notice of affidavits sworn
before foreign judicatures, provided they are properly authenti-
cated.

Where the affidavit is taken before one of the judges of the ^ ^"^^^ ou
superior courts in Ireland, an affidavit that the signature is in his 3ia(.k. 275.
hand-writing, has been admitted as a sufficient authentication of
it. But, with resjiect to ordinary magistrates, it is usual to re-
quire the attestation of a notary public. In a late case («), how- (rt)Dalmer v.
ever, the Court of King's Bench received an affidavit purporting ^^p"^'*'^'
to be sworn before the high bailiff and chief magistrate of the 251 . but see
district of 7Joz^i^/fir5 in ihe Isle of Maji, upon oath made before the Riddle v. Nash,
court here, that the deponent believed the signature to be of the 8 Moo. 632.
proper hand-writing of that magistrate.

Affidavits sworn before a justice of the peace in Scofla?id, are Tumbull v.
admissible in a cause in the K. B. if the handwriting of the justice Moreton,
beauthenticated.il 721^ g^^^-^

19 Ves. 345. So, also, before a baron of exchequer in Scotland. 1 Jac. & W. 296.

(B) Where an Affidavit is necessary.

'T^HE law and practice of the courts require, that on all motions Vide the seve-

for an information, attachment, complaint against any officer ral heads. [By

for an offence not committed in the face of the court, for a new ^^fj*'' °^'^^

trial, relating to the serving and returning of writs or processes, jj. jg enacted

4c oath or affidavit be made of what is affirmed, that the judges that the so-

may be satisfied, as well of the truth thereof, as of the reason- lemn affirm-

ableness of granting relief when made out. ^f"^" ?"'* ^^'

° *^ claration ot a

Quaker shall be accepted in all cases, except in a criminal cause, instead of an oath in the

usual form. See too 12 G. 2. c. 13. 22 G. 2. c. 46.]

Also, by acts of parliament, affidavits are made necessary, as
by 4 Ann. cap. 16. § 11. in the case of dilatory pleas; and by
the 12 Geo. 2. cap. 29. to hold to special bail.

II As a general rule the court requires in all petitions under acts 2 Younge & J.
for local improvements, ^c. for payment of money out of court, ^^^^
that the parties applying shall by affidavit shortly verify their title,
and state that, to their knowledge and belief, no other person has
any title to, or claims any interest in the estate. ||

If a person exhibits a bill for the discovery of a deed, and prays Q\^Q;{y q^ j i^
relief thereupon, he must annex an affidavit to his bill, that he 23i.Vern.i80.
has not such deed in his possession, or that it is not in his power 247. 3 Chan.
to come at it; for otherwise he takes away the jurisdiction of the S' **' pP'^''*
common law courts, without shewing any probable cause why he g q.^ \^^^
should sue in equity. 15.' 2 Eq. Ca.

Abr. 13. 2Freem. 7. 2 P. Wms. Rep. 541. Prec. Ch. 536. sAtk. 17. 132. Con/r. 1 Yern.
59. evidently a mistake.

But,

1«8 AFFIDAVIT.

V«jrn. 180. But, if he seeks discovery of the deed only, or that it may be

«<T- produced at a trial at law, he need not annex such affidavit to

his bill ; for it is not to be presumed that in either of these cases
he would do so absurd a thing, as exhibit a bill, if he had the
deed in his possession.
King V. King, [It is also unnecessary in the case of a bill for discovery of a
Most'ly, 192. cancelled instrument, and to have another deed executed, for if the
plaintiff had the cancelled instrument in his hands, he could make
no use of it at law, and the relief prayed is such as a court of
equity only can give.]
Abr.in Eq. 14. Also, if he sets forth the whole circumstances of his case, and
Prcc. Ch. 536. p^ys general relief, the prayer of relief shall be applied to the
GUb.^Hist. discovery only.

Philips V. [If a bill be filed for examining a material witness upon the

Carew, 1 P. ground that his evidence is likely to be lost by death or departure
Wms. 117. from the realm, there must be an affidavit annexed to it, of the
Ferrers % P*^ circumstances from which the danger of such loss is apprehended.
Wms. 77. So, if a bill be filed for perpetuating the testimony of a witness
1 Atk. 450. upon the ground of his being the only witness to a particular
Mitf. Eq. pi. point, and his evidence being of the utmost importance, an affi-
davit of the witness himself should be annexed, to it. The prin-
ciple on which it is required in these cases to annex to the bill an
affidavit of the circumstances which render the examination of
witnesses proper in a court of equity ; though the matter is capable
of being made immediately the subject of a suit at law ; seems
to be the same as that on which the practice of annexing an
affidavit of the loss or want of an instrument, to a bill seeking
to obtain in a court of equity the mere legal effect of an instru-
ment, is founded; namely, that the bill tends to alter the ordi-
nary course of the administration of justice, which ought not to
be permitted on the bare allegation of a plaintiff in his bill.
Taylor v. In order to obtain the leave of the court to bring a bill of re-

Sharp, 3 P. view, or a supplemental bill in the nature of a bill of review ujpon
x^]!^f'£^^^'l ^^^ discover!/ of new matter^ thfere must be an affidavit that such
78. 82. * °^^^ matter could not have been produced or used by the party

claiming at the time when the decree was made.]
Bunb. 303. In an interpleading bill, the party who prefers it must

jSee 3 Ves. & make affidavit that he does not collude with either of the other
^•'•>°ll parties.

[(a) He must He who moves for a ne exeat regno against another, must make
ly ^fthc"'^ affidavit of the loss he is like to sustain by the party's going out
clcfcndant is °^ ^^^ kingdom, and that thereby the debt may be lost, and that
indebted to the party is actually going out of the kingdom, (a)
him in a sum certain: where indeed a bill is for an account only, the plaintiff's swearing that
he beheves the balance in his favour will be so much, will be sufficient. 3 Atk. 501.] llSee
5 V». 96. 8 Ves. 52. 7 Ves. 417. 10 Ves. 164. ll Ves. 54. 16 Ves. 470. 18 Ves. 354.
19 Vet. 342. 6 Madd. 276.; and see tit. Prerogative, Vol. VI.||

St^*^ Tp f^ Quaker hath been permitted to put in an answer to a fri-

Wras! 78i! volous and vexatious bill without either oath or affirmation.
S P. Wms. Where a party excepts to a fact certified by a master's report,

.142. note. he must support his exception by an affidavit.

The

129

Jonee, 155.
Seld. 3 Vol.
p. 2. 1335.

The nobility of this kingdom, and lords of the upper house
of parliament, are of ancient right to answer in all courts, as
defendants upon protestation of honour only, and not upon
oath.]

A peeress by her answer owned that she had several deeds in p^^ q^
her power, but did not set them forth ; and on motion she was Duke HamiJ-
ordered to produce them on oath, but that order was changed, ton and Lady
and she to produce them on honour only, beinff in supplement Gerrard; but
to her answer, which was on honour. ^j^^j. ^^^ ^^.^^^

that a peer or peeress should produce writings on affidavit, or be examined on oath, as to any
thing in his answer, is not good. [Lord Harcourt held, that the privilege of a peer to depose
on his honour only, was confined solely to his answer in Chancery ; that in all other cases he
must be upon oath ; and therefore the Lord Stourton was put to answer upon his oath to
interrogatories. Sir Thomas Meers v. Lady Stourl^on, 1 P. Wms. 146.]

/V N affidavit must set forth the matter positively, and all ma-
terial circumstances attending it, that the court may judge
whether the deponent's conclusions be just or not.

And therefore, on motion to put off a trial for want of a ma-
terial witness, it must appear that sufficient endeavours were
made use of to have him at the time appointed, and that he can-
not possibly be present, though he may on further time given.

II In an affidavit in a cause the plaintiff need not state his resi-
dence. ||

Faresl.
Comb.

121.

422.

Crockets v.

Bishton,

2 Madd. 446.

2 Salk. 461.

Rex V.Wilson,
4TermR.487.

Upon a rule to shew cause, the plaintiff offered several new
affidavits, and this diversity was taken, viz. where they contain pi. i.
new matter, and where they tend only to confirm what was al-
leged and sworn when the rule was made ; in the latter case they
may be read, not in the former.

[When a defendant who has suffered judgment by default in a
criminal prosecution, is brought up for judgment, each party
should come prepared with affidavits disclosing his case (if he
mean to produce any) ; but if in the course of the enquiry the
court wish to have any point further explained, they will give the
defendant an opportunity of answering it on a future day.

When a defendant who has been convicted on an indictment Rex v. Sharp,
comes up for judgment, the prosecutor may read affidavits in »ess, i Term
aggravation, though made by witnesses who were examined at the ^* ^^®'
trial, which affidavits the defendant is at liberty to answer.]

If there be affidavit against affidavit, the proper method is to „ .
have it tried by an issue at law. ifseTBearnVs

Ord. 34.|| But this is matter discretionary in the court. See 3 Mod. 108. where an action
'on the case was brought for scandalous matter inserted in an affidavit ; that the party is to
put nothing in the a^f/ayjMnit what is material to the point, and therefore not to set forth
the merits of his cause on motion. Stile Prac. Reg. 79. where the affidavit of one who stood
in the pillory was read. 2 Salk. 461. But for this vide tit. Evidence. ||As to affidavits in
support of injunctions, see tit. Injunction.^

li An affidavit made in support of a state of facts may be re- In re Burton,
ferred for scandal, but not for impertinence, by a party who has ^ Russell, 580.
Vol. I. K filed,

I3i) AGREEMENTS.

See 7 Price, filed, in support of a counter state of facts, an affidavit which ap-
***• |)ears to be an answer to the former. II

AGREEMENTS.

(a) An agree- A N agreement [a) is the consent of two or more persons, the
mentis defined xX ^^^^ ^^ p^j.^^ with, and the other to receive, some property,

*^^t^ ■ • riffht, or benefit. The notion of contracting or entering into
wtennum tn re o ' „,. ^ '^ ,,°

atiqua facta vel agreements arose trom the mcrease or commerce, and the neces-
facicnda. sity men were under of bartering their superfluities for things of

Plowd. 17. a. j.gjj| ygg^ which lay out of the way of their acquiring. That men
uluiiumin should execute their agreements and perform their promises,
idem placitum though made without writing or consideration), is enjoined by the
consensus. law of nature ; but in civil societies, and in ours in particular,
P^' T"',' "ij circumstances are required which protect the weak, and those
Though aeon- ^ho are under the power of others ; and provision is made against
tract executed fraud and circumvention,
with all the

solemnity required by law, may properly be called an agreement, yet in the more common
acceptation of the word articles, viinutes, and escrow, &c. containing something preparatory
to a more solemn and formal execution, are called agreements.

Under this head we will consider,

(A) Who are capable of contracting and binding them-

selves or others by their Agreements.

(B) Of Agreements which are good in Law, and will

be decreed in Specie in Equity : and herein,

U Of unreasonable Agreements, and such as may he said to
be obtained by Fraud or Circumvention.

2. Of voluntary Agreements,

3. Of the Manner in which they are to be performed,

be within the Statute of Frauds and Perjuries :
and herein.

Hi. Of Agreements mentioned in the First, Second and Third
Sections of the Statute.

2. Of Agreements mentioned in the Fourth Section : and
herein,

1. Of

(A) Who are capable of making Agreements, 131

1. Of Promises by Executors, Administrators, &c.

2. Of Promises to answer for the Debt, Default, or

Miscarriage of another.

3. Of Agreements in consideration of Marriage.

4. Of Contracts for Sale of Lands, Tenements, and

Hereditaments.

5. Of Agreements not to be performed within One Year

from the making of them.

3. Of Agreements mentioned in the Seventeenth Section : and
herein,

1. What Agreements are within the Section.

2. Of Acceptance of Goodsj and part Payment within

the meaning of the Section.

3. Of the Memorandum in Writing, and the signing by

the Party to be charged, or by an Agent, jj

(D) Of Cases where Equity decrees specific Perform-
ance of Agreements on the Ground of their
being in part performed.

(A) Who are capable of contracting and binding them-
selves or others by their Agreements.

A PERSON non compos is not capable of entering into any But for this
agreement, for an agreement is an act of the understanding vide head of
which such persons are incapable of, and therefore are to be ^^^^^'^ ^^'^
under the care of their curators or guardians, by a commission
from the public.

An infant for the same reason is incapable of contracting. pj^^ ^^jg^ ^^^^

of Infancy and Age, ||and Void and Voidable.^ [If an infant. Bays Ld. Mansfield^ does a rifrht
act which he ought to do, or which he was compellable to do, it shall bind him. 3 Burr. 1801.
And if an infant enter into a contract with the advice and concurrence of his friends, and such
contract appear to be beneficial to the interests, of the infant, equity will support and give
it efifect. 1 Eq. Cas. Abr. 287.

A wife during the intermarriage is [a) incapable of entering Vide tit. Baron

into any agreement in pais, being under the power of her f"f^^'.^'.
It 1 ffl) But it IS

husband. iaid.thatif

a feme covert, by agreement made with her husband, is to surrender a copyhold or levy a fine,
though the husband die before it be done, equity will compel her to perform the agreement.
2 Vern. 61. pi. 52. Eq. Ca. Abr. 25. pi. 6. Upon looking into the Registrar's book, it ap-

E eared that the court made no decree in it, but it was by consent referred to Mr. Serjeant
lawlinson for his arbitration. Equ. Ca. Abr. 62. pi. 2, per curiam.

The ancestor seised in fee may by his agreement bind his heir; Baden v.
therefore if A. agrees to sell lands, and receives part of the pur- p°"u^^ °^
chase money, but dies before a conveyance is executed, and a bill 2 Vern. 215.
is brought against the heir, he will be decreed to convey (6), [(A) So in the
and the money shall go to the executor, especially if there are caseofacus-

K 2 more

ia« AGREEMENTS.

tomory heir, more debts due than the testator's personal estate is sufficient to

tV«.640.]

But if a man ' •'

for 100/, assumes to make a lease for twenty-one years, and dies, his heir is not compellable in
a court of equity to make the lease, for this is against tlie common law. Qiuere. Eq. Cas.
Abr. 265. pi. 4. iJRoll. Abr. 377. pi. 18.||

VuU in/n) of So if a father conveys to a younger son by a defective convey-
voluntary ^^^^^ ^^^^ jj^^^ ^1^^ |^gjj. ^j. ^^^ jj^ ^^^ ^^^^^ shall be compelled

(fl!T?9.*^uTOn 'o make it good. 1. Where there is a covenant {a) for further
a marriage assurance, binding the heir, because the heir is bound by the
treaty was to covenant. 2. Where there is a provision made by the father in

settle 500/. ;«rr j,jg iife_time for the heir, or he hath such provision by descent
annum asa^,^,,,. ' ' •'

jointure, in from the father. (6)

consideration of a marriage portion ; J. S. was intrusted with the drawing of the settlement,
which was never read by the wife; the jointure settled was but 400l. per annwrn, of which the
husband took notice, and talked of making it up so much, but dying before it was done, his
heir was decreed to make it up, although there was no covenant by which he bound his
heir to make it up so much. Vern. 16. [{b) See the case of Chetwynd v. Fleetwood, 4 Br.
P. C. 435. where a specific performance of an agreement made by the ancestor, only tenant for
life, was decreed against the heir, the agreement being clearly for his benefit.] jjSee Brummell
V. Clavering, 3 Swans*. 690.|| v

Hob. 203. I^ tt:.ant in tail agrees to convey, or bargains and sells the

Chan. Ca. 171. lauus for valuable consideration, without fine or recovery, and
10 Mod. 469. dies before the fine or recovery be levied or suffered, the issue
(d) So^th^o^u' h ^^ "°' (^^ bound either in law or equity, for equity cannot set
there be a de- aside the statute de doniSf which says, voluntas donatoris obser-
cree against vetur ; nor can the court set up a new manner of conveyancing,
the tenant in and supersede fines and recoveries ; for thereby the king would
filieand^ suffer ^^^^ ^^® perquisites by fines, on the writs of entry and fines for
a recovery, alienation.

and he dies in contempt and in prison for not executing it, yet the issue shall not be bound-
Vide Eq. Abr. 25. pi. 4. 265. pi. 2. 2 Vern. 506. [2 Ves. 634. But see Hill v. Cari;^ 1 Ch.
Ca. 294. The issue not bound by a covenant for further assurance. 1 Lev. 237. nor by
articles to convey for payment of debts. 2 Eq. Ca. Abr. 28. p. 34. By analogy to the cases
of tenants in tail who claim paramount to the contracting party, it hath been holden, that the
widow of a copyholder for life, who had agreed for the sale of his estate, but died before the
conveyance was executed, was not debarred by this agreement of her free bench; for that her
claim was not under the husband, but from the custom of the manor. Musgrave v. Dashwood,
2 Vern. 45, 63. But Ld. Hardwicke thought that the widow's estate was a branch of, and
arose from that of the husband, and that the custom merely directed its derivation ; and there-
aIL^a^^^ the agreement was for a valuable consideration, paid, as to the greatest part, he
. ^^^ c. -_r ... ... ... __ ,^^^ Arabl. 277.

same principle,

o , — without doing so,

eouity would not enforce the agreement against the survivor. But this, it seems, must be
taken with this limitation, where the articles are not such as amount to a severance of the

"•^l ^' I • ^^ ^^ ^'^» ^^^^^y '''^^ ^^"^^ against the survivor. Per Ld. Hardwicke, 2 Ves.
634. Co. Lltt. 59, b.]

Sir*a^d' ^^^' , ^* *^i^®^ °^ ^^"^* ^" ^^^' agrees with B. that he and his heirs
fUm, (d)So if snail enjoy the entailed lands, if A. and his heirs may enjoy his
the issue in fee-simple lands ; this agreement is executed accordingly, and B.
tail had rcco. had a decree against A. to levy a fine and settle it, pursuant to
the pufcha^. ^^"^ agreement; but A, died without doing it: though it was de-
money in his creed that A. himself was bound by this agreement to convey, yet
father's life- since he died before he executed the fine, his issue was not bound
time, or after by the agreement : but if the issue in tail liad approved of his

ancestor's

(A) Who are capable (^making Agreements, 133

ancestor's agreement, as he did in this case, by entering on the his deatli.or if
land of B. then it becomes his own agreement, and consequently ^^ had joined
in equity he shall be obliged to perform it. {d) with tie father,

or covenanted for further assurance, &c. Chan. Ca. 171. Lev. 238. [Any agreement with an
equivalent will bind the issue, as a partition, though but by parol, or an excharge of lands.
2 Vern. 202. Co. Litt. 174. a. 384. a.]

If there be tenant in tail in equity as of a trust, or under an chan. Ca. 234.
equitable agreement, and he for valuable consideration bargain 2 Chan. Ca. 64.
and sell the land without fine or recovery, this shall bind his 2 Vent. sso.
issue, because the statute de donis doth not extend to it, being Jvern %?^*
an entail in equity and a creature of the court, {a) 583_ 702.

[(a) It seems that upon the same principle the heir in tail of a copyhold, whose ancestor had
entered into an agreement to sell, but had died before surrender, would be decreed to convey
to the purchaser ; for the entail of a copyhold is not within the statute de donis. Powell
on Contr, 126.]

As tenant in tail is restrained from alienating the estate with- Bro. Contract.

out fine or recovery, so he is from charging it, or disposing of the p^* } ^ r?' ^°"

lasting improvements after his death ; therefore if tenant in tail (Jj^Qh. Whe-

sells the trees growing on the inheritance, the vendee must sever ther he may

them during the life of the tenant in tail, for if he dies before "ot have relief

they are cut down, his issue shall have them as part of the inherit- J."jher"^^ "t*^

ance, and the vendee, though {b) obliged to pay the whole sum ^^ action for

contracted for, yet shall not be allowed to cut down one tree after money had

the death of tenant in tail ; for as the tenant in tail has power over and received

the inheritance but during his own life, so he cannot delegate would not lie
. I . ^ 11^1 . 1 ° 1 against the re-

tnat power to another but tor the same time ; and consequently, presentative ?

whatever remains part of the inheritance at the death of tenant in [If tenant in

tail, at which time his power over it ceases, must necessarily go tail covenant

to the heir, to whom the inheritance belongs. f° make a

D lease, which he

has power to make, and die before execution, equity, it seems, will carry it into execution

against his heir. 10 Mod. 469. If tenant for life, with power to make leases for twenty-one

years, grant one for twenty-six years, such lease shall bind the remainder-man for .twenty-one

years, for under the power of leasing there is a referable privity given. Campbell v. Leach,

Anibl. 740.] \\Vide Shannon v. Bradstreet, 1 Scho. & Lef. 52. Ellard v. Lora LlandafF, 1 Ball.

& B. 241., and 1 Chan. Ca. 25. 3 Chan. R. 1 l.jl

CA mother, acting as administratrix, may bind her children. Highter v.

Sturman, 1 Vern. 210.

Churchwardens are in that character competent to enter into Dr. Martin v.
any agreement which may be beneficial to the parish, and thereby w^^^^^ofi^s^'
to bind the parishioners and their successors, as also succeeding nggg jjj.^

churchwardens. Church-

wardens.^

If a party undertaking for and on the behalf of another have Johnson v.
no authority from his principal, there it is a fraud, and the un- Ogilby, 3 P.
dertaker ought himself to be liable. But where a due authority Wms. 279.

Martini" xr

is given to treat, there the performance of the contract shall be ^^^jg g Vem
enforced against the principal. 127. Duchess '

of Marlborough v. Strong, 5 Yin. Abr. 533. p. 38. 2 Bro. P. C. 500. S. C. If an attorney
should bid more for an estate sold under a decree of the Court of Chancery, than he waa
empowered to bid, and declare his principal, Sir Thomas Sewell, Master of the Rolls, thought
that the attorney himself would be liable, but doubted whether the principal would. Ambl.
498. But where many are concerned in interest, and the credit is evidently given to the
person, and not to any fund, the immediate contractors are liable. Thus where a man con-

K 3 tractei

134 AGREEMENTS.

tracted to pore the streets of a town by a written instrunaent executed between hira and two
of the parishioners, the Court of Excheauer decreed him relief against the undertakers, and
left them to their remedy over afjainst the rest of the parish ; more especially as the written
contract, which was the plaintiff"'s evitience, was in the hands of one of the defendants. Me-
rick V. Wymondfold, Hardr. 205. So it was holden, that a bill might be supported against the
committee of a club for an agreement entered into by them on account of the club, without
making the rest of the subscribers parties. Cullen v. Duke of Queensberry, 1 Bro. Ch. R. 101.
affirmed in Dom. Proc. March 27. 1787. So, where the commissioners of a navigation act
entered into an agreement with an engineer, they were holden to he personally liable. Horsley
T. Bell, Ambl. 770. S. C. in 1 Bro. Chan. R. 101. in note. I|Eaton v. Bell, 5 Barn. & Aid. 34.
In these cases the contracting parties, though agents, are held liable on the ground of the
absence of any re»ponsiblc principal ; but there is an exception to this rule in the case of
government agents and public officers : e.g. the governor of a settlement, a commissary
general, the commander of a ship of war, who, in general, are not personally responsible on
the contracts made in their public capacity, although there be no principal against whom a
remedy can be had. Macbcath v. Haldimand, ||l Term R. 172. ; and see Myrtle v. Beaver

1 East, 135. Bowen r. Morris, 2 Taunt. 374. If, indeed, the agent bind himself by a formal
engagement, as if a factor enter into a charter party in his own name, or if an agent purchasing
bills for his principal indorse them himself, or if an agent covenant for himself and his heirs for
the act of his principal, then, whether a public officer or not, he is personally liable. 1 Term
R. 181. 2 Moll. 331. 2Atk. 623. 2 Vern. 280. Goupy T. Harden, 7 Taunt. 1 59. Appleton
T. Binks, 5 East, 148. Burrell v. Jones, 5 Barn. & A. 47. Paley on Princ and Agent, ch. 6.
(2d edit.jil /

Daniel v. Where an agent employed by husband and wife to sell the

Adams, Ambl. wife's estate by public auction sold it by private contract, at a
*•*• higher price than they had required, the court refused to compel

them to execute the contract, the agent not having acted pur-
suant to the authority given him.
Ambl. 498. But if a factor sell goods at less price than he is commissioned,

otherwbe' i'n '^^ ^^^^ ^^^^ ^^"^ '^^ principal for the convenience of trade,
case of a broker, i Esp. Ca. lil.H

Cox V Peele ^^^ agreements of the solicitors in a cause, relative to orders

2 Bro. Ch. R*. of court, are binding on their clients.]
334. ||A» to admissions by attorneys of facts, vide tit. Evidence.^

(B) Of Agreements which are good in Law, and will
be decreed in Specie in Equity : and herein,

1. Of unreasonable Agreements^ and stick as may be said to be
obtained by Fraud or Circumvention.

(a) Vide t\t. JN many cases the party injured by breach of an agreement
#am^/, and , ™^^ ^^^^ * remedy either by action at common law (a), ojr
Covenant. ^V recourse to a court of equity ; but here a general rule must

Vide Abr. Eq. be observed, that wherever the matter of the bill is merely in
the rallof" *^^"^«ges, there the remedy is at law, because the damages can-
courts o( 1?°^ ^^ ascertained by the conscience of the chancellor, and there-
equity not to 'ore must be settled by a jury, (b)

entertdn the suit unless the plaintiff" wants the thing in specie, and cannot have it any other
way. fcmngton v. Aynesley, 2 Bro. Ch. R. 343. Therefore, in general, they will not allow a
S i K » '^uf" performance of contracts of stock, corn, hops, or other articles of merchan-
due, but w^l leave the plamtifi^to his remedy at law. l P. Wms. 570. 5 Vin. Abr. 538. S. C.
XS^n o'o Tf' K • r' u °°"'°" ^- Westbrook, 2 Eq. Ca. Abr. 161. p. 8. 5 Vin. Abr.
««,;h'^;, rk '^''^^^^ /f the common covenant to repair demised premises, is considered as
•«rin J in rh M^ L°h ?"'* P^PI'T-**"'^ *° b^ redressed by action at law. Whistler v. Main-
E^^ I ^» ov ^' ^' u '±" ' Wooddes. 464. n. 2.] HMosely v. Virgin, 3 Ves. 1 85.
R*ynar V. Stone ,3Lden. 128.|| [But on a covenant to rebuild, as it was holden by Lord

Hardunckc,

(B) TFhaf good in Law, and speci/icall^ enfoj^ced in Equitif. 135

Hardwicke, the landlord or lessor may come into Chancery for a specific performance, if he is
in due time, and no constructive acquiescence can be imputed to him. City of London v.
Nash, i Ves. 12. and 5 Atk. 512. S. C. This doctrine, however, has been lately controverted,
and perhaps entirely over-ruled. Lucas v. Comerford, 3 Bro. Ch. R. 166.] [jSee Mosely v.
Virgin, 3 Ves. 185. Flint v. Brandon, 8 Ves. 164. Hill v. Barclay, 16 Ves. 402.1| [In the cases
of Gardener v. Pullen, 2 Vern. 594. Thomson v. Harcourt, 2 Bro. P. C. 41 5. a performance of
an agreement for stock was decreed. But it should be observed, that in those cases the party
who had undertaken to transfer the stock was j)laintifF, seeking relief against a penalty, in
which he had bound himself for performance of the contract, and that the performance of it
was the only ground on which equity could relieve him. Fonbl. Notes on Eq. Tr. p. 120.
But on a bill filed against the party who had undertaken to transfer the stock, Lord King did
not think the rule so invariably settled, as to allow a demurrer to the bill for want of equity.
Colt V. Nettervill, 2 P. Wms. 304.] ||See Mason v. Armitage, 15 Ves. 37. Nutbrown v.
Thornton, 10 Ves. 161. And a bill will lie for performance of an agreement to purchase stock
where it prays a delivery of certificates which give a legal title to stock. Doloret v. Rothschild,
1 Sim. & Stu. 590.|| [And contracts respecting mere personal chattels will be enforced in
equity where the damages recoverable at law would not be an adequate compensation for the
non-performance. Buxton v. Lister, 3 Atk. 383., and Taylor v. Neville, and Duke of Buck-
ingham V. Ward, there cited; and Lord Ranelaugh v. Hays, irifra.} |lAs in the case of the
stock on a farm seized by the landlord during the tenancy. Nutbrown v. Thornton, 10 Ves.
159.; family pictures and furniture. Lady Arundell v. Phipps, Ibid. 139.; and see Withy v.
Cottle, 1 Sim. & Stu. 174. 1 Turner & R. 78. The court will enforce a specific performance
of a contract to purchase a debt. Wright v. Bell, 5 Price R. 325. Dan. 95. ; and see Withy
V.Cottle, suprh. Adderley v. Dixon, 1 Sim. &Stu.607.1|

But if there be matter of fraud mixed with the damages, as if Chan. R. 158.
A, sues B. on a covenant at law for damages, and B. files a bill ^^''•Eq. 17.
for an injunction upon this equitable suggestion, that the cove-
nant was obtained by fraud, if y^. files his cross-bill for relief upon
that covenant, the court will retain it, because the validity of
the covenant is disputed in that court, and on a head properly
cognizable there ; and therefore, if the validity of the deed be
established, the court will direct an issue for the quantum of the
damages.

So where the agreement is to do something in specie, as to See Chan. Cd.
convey lands, execute a deed, 8fc. there it will be proper to apply 42. where an
to a court of equity for a specific execution, to which the party agreement m
is entitled, if the agreement be good and sufficiently proved, ^^ger was
when otlierwise he could only recover damages at law. decreed in

specie.

Ij A specific performance will not be decreed of an agreement street v.
to submit to arbitration. Rigby, cVes.

818. Agar V. Macklew,2 Sim. & Stu. 418. Gourlay v. Somerset, 19 Ves. 431.

Nor of an agreement to purchase an attorney's business, since Bozon v.
supposing such agreement not illegal, the court has no means of Farlow,
carrying it into execution. * Meriv. 459.

Nor of an agreement for partnership, as it may be dissolved „
immediately afterwards. 1| Birch 9 Ves,

357. ; ted vide 3 Atk. 385. Madd. Treatise on Chan. 411. note (x).

The plaintiff assigned some shares of the excise to the defend- Vern. i89.
ant, who thereupon covenanted to save him harmless, and to R'- ^^^' ^"'"'^
stand in his place touching all payments to the king ; the plain- j|' ^ 2 Chan',
tiff being sued by the king, brought his bill to have the agree- Ca. 146. S. Cr
ment performed in specie; and although it was insisted that the
plaintiff might recover damages at law, and that this was not a
covenant for any thing certain ; and by this means a Master in

K 4 Chancery

136 AGREEMENTS.

C'hancery was to tax damages instead of a jury; yet it was de-
creed, that the defendant should perform his covenants ; and it
was directed to a Master, that, as often as any breach should
happen, he should report it specially ; that the court, if occasion
should be, might direct a trial in a quantum damnijkat.
Abr. Eq. 18. So if a jointress brings her bill to have an account of the real

^7. [(a) In j^„j personal estate of her late husband, and to have satisfaction
Stcwart,*4th thereout for a defect of value of her jointure lands, which he had
/m/j 1786. covenanted to be and to continue of such value ; and the defend-
er L.Kcnyon ant insists, that this is a covenant which founds only in damages,
Master of the ^^^ properly determinable at law; though it be admitted that a
Rolls, directed f r -. .. i i i ► • *u-

the Master to court of equity cannot regularly assess damages ; yet in this case,

enquire what a Master in Chancery (a) may properly enquire into the value and
damage the defect of the lands, and report it to the court, who may decree
plaintiff had g^^jj defect to be made good, or send it to be tried at law, upon
sustained by . i -^ . ° » r

the defendant's « quantum dammficat.

not having performed his agreement, of which a specific performance was prayed by the bill,
but which could not be decreed, the defendant having, by sale of the estate, put it out of his
power to perform his agreement with the plaintiff. Fonbl. Notes on Eq. Tr.389.] jjThis
decision was followed by the Master of the Rolls in Greenaway v. Adams, 12 Ves. 595. ; but
the nrinciple was doubted in that case, and also in Gwillim v. Stone, 14 Ves. 128., and
Todd v. Gee, 17 Ves. 273.; and see a foil note of Denton v. Stewart, 17 Ves. 276., and 1 Cox
R. 258.0

Abr. Eq. 18. The condition of a bond was to settle certain lands in such a

P'-^' K*)^* manor, by such a day; and the obligor died before the day, so
holden that to ^^' ^^ bond was saved at law ; yet the court decreed a specific
found a de- execution, {h)

cree for a specific performance, the contract must be good at law ; and therefore it is stated
by Sir Thomas Clarke^ Master of the Rolls, in Ambl. 406. that it was the practice before Lord
Somers* time with respect to agreements, to send the party to law ; and if he recovered any
thing hy way of damages then to entertain the suit. But equity will often enforce a perform-
ance of agreements, though no action will lie at law upon them, as in the case in the text, and
in Cannel v. Buckle, 2 P. Wms.243. Acton v. Pierce, 2 Vern. 480. Scott v. Wray, 1 Chan.
R. 45. Edwin v. East India Company, 2 Vern. 210.] ||Chandos v. Brownlow, 2 Ridg. P. Ca.
416.; but see 2 Freeni. 216., and see 1 Anst. 45. 3 Swanst. 41 7.1|

Abr. Eq. 17. ^"' .^^^^ it must be observed, that agreements, out of which

3Atk.386. an equity can be raised for a decree in specie, ought to be ob-
TS)*234'Pr ^'"*:^ ^^^^ ^^^ imaginable fairness, and without any mixture
Ch.538. iBro. ^^"^'"g to surprise or circumvention; and that they be not un-
Ch. R. 440. reasonable in themselves, (c)

((e) Vaughan v. Thomas, l Bro. Ch. R. SSG, ace. Stanhope v. Toppe, 2 Bro. P. C. 1 83. 2 Ed.
Ca.Abr.55. note to Ca.1.1 iJCostigan v. Hastier, 2 Scho. & Lef. 166. Howel v. George,
1 Madd. K. 1 1. note. Revell v. Hussey, 2 Ball & B. 287.|| [But inadequacy of price, simply
and of Itself, independently on any other circumstances, is not a ground with the court to
annul an agreement, though executory. Keen v. Stukeley, Gilb. R. 155., and 2 Bro. P. C, 396.

-n"*"!?^'!; ''P^'"L.-.S''°-^^-'^'^^^- ^^""y^^ v- Sherrard, Ambl. 18. Jackson v. Lever,
5 wro. I h. K. 605. ^^tIll less is it a ground to rescind one already executed. Nicols v. Gould,
S \ C8. 422. Henley v. Acton, 2 Bro. Ch. R. 1 7. Spratley v. Griffith, 2 Bro. Ch. R. 1 79. Willis
V. Temegan, 2 Atk. 25 1. ; but see Heme v. Meeres, l Vern. 465. In the case of Heathcote v.
Mugnon, 2 liro. Ch. K. 167. Lord Thurlow admitted, that mere inadequacy of price was
•cwcely sufficient; but said, that « there was a difference between that and evidence arising
frominatlequacy.Ifthere IS such inadequacy as to shew that the person did not undert
stand the bargain he made, or was so oppressed that he was glad to make it, knowing its

Vnlln!'^"n W k « VT"^«"^ ""l^' '"•" ^hich may amount to fraud." And see ace.
Young V. Clerk, Pr. Ch 538.] HLovc v Borchard, 8 Ves. 1 33. Westburn v. Russell, 3 Ves. &
B.187. Matthew, v. Peern, 1 Cox's R 278. Copi, v. Middleton, 2 Madd. 430. Coles v.

Trecothick,

(B) What good in Law, and specifically enforced in Equity, 137

Trecothick, 9 Ves. 246. Underbill v. Harwood, loVes. 219. Burrows v. Lock, loVes.474.
Murray V. Palmer, 2 Scho. & Lef. 488. Peacock v. Evans, 16 Ves. 517. Lukey v. O'Donnel,

2 Scho. & Lef. 471. Pickett V. Logan, 14 Ves. 240. Inadequacy of price coupled with dis-
tress of the vendors, and want of advice, is a ground for invalidating a sale. Wood v. Abrey,

3 Madd. 417. ; and see Kemyes v. Hansard, Coop. C. 125. Martin v. Mitchell, 2 Jac. & W. 13.|1
[And where agreements are endeavoured to be set aside, for supposed weakness of understand-
ing in one of the contracting parties, for breach of confidence, or other substantive reason, the
inequality of the terms may be a material ingredient in the case, as evidence of imposition.

5 VVooddes. 455., and Griffin v. De Veulle, and others, reported in the Appendix. It is to be
further observed, that where an agreement appears very unequal, the courts will lay hold of
very slight circumstances to avoid enforcing the execution of it ; as where the plaintiff had
not made out his title by the time stipulated. Kenn v. Stukely, 2 Bro. P. C. 396, ; a circum-
stance which, in general, has not any weight with them. Gibson v. Patterson, 1 Atk. 12. If
the contract be fair in its creation, it shall not be aifected by a subsequent event, which has
thrown the advantage greatly, or wholly on one side. See the case of Cass v. Rudele, 2 Vern.
280. more correctly stated in 1 Bro. Ch. R. 157. City of London v. Richmond, 2 Vern. 423.
Carter v. Carter, Ca. temp. Talb. 271. Mortimer v. Capper, 1 Bro. Ch. R. 156. and the case
there referred to by Lord 77/Mr/ot/;. Adams v. Weare, 1 Bro. Ch. R.567. Jackson v. Lever,
3 Bro. Ch. R. 605. where contracts, under such circumstances, have been specifically decreed.
And see the case of Nicols v. Gould, 2 Ves. 422. Henley v. Acton, 2 Bro. Ch.R. 17. Baldwin
V. Boulter, cited in 1 Bro. Ch. 11.156. where the courts have refused to set them aside.]
iJRamsbottom v. Parker, 6 Madd. 5.1J [To this current of authorities must be opposed the
dictum of the Master of the Rolls, in Stent v. Bailis, 2P. V/ms. 220. and the case of Pope v.
Roots, 7 Bro. P. C. 184., in which case an estate was sold for an annuity, but the vendor dying
before any payment was made ; and after the day on which the first payment was to have
been made, the contract was rescinded, though not impeached in any other respect. James v.
Owen, E. T. 1733, cited in Fonbl. Notes on Tr. Eq. c. 2, § 11., appears to have proceeded on
a different ground : the plaintiff had agreed to present the defendant to the Court of Alder-
men, and to resign the place of printer to the city of London in his favour, to which place
certain fees and profits were then annexed, but which the Court of Aldermen intimated their
intention to reduce ; and for that reason the defendant refused to perform his agreement. The
court thought, that the object of the agreement being the then profits, which were not purely
contingent, and the plaintiff not having actually surrendered, the performance of the agree-
ment ought not to be decreed.] jjSee Paine v. Mellor, 6 Ves. 349. Revell v. Hussey, 2 Ball

6 B. 287.|| [A party who demands a specific execution of an agreement, must shew that he
has performed all that was to be done on his part, or that he is ready to do so ; " for if he
" either will not, or through his own negligence cannot perform the whole on his side, he has
" no title in equity to the performance of the other party, since such performance could not
" be mutual." Tr. of Eq. c. 6. ^ 2. But it must be observed, that though a plaintiff has not
performed what was required on his part within the time stipulated, he is yet in general entitled
to a specific execution, especially if the non-performance has not arisen by his default. Penn
V. Lord Baltimore, 1 Ves. 450. If in the sale of an estate, it be stipulated that the price shall
be paid, or the title be completed by a certain day, which elapses without either being done,
still the contract shall be enforced ; for the general rule is, not to consider the time as of the
essence of agreements. Gibson v. Paterson, 1 Atk, 12.] |lBut this doctrine is much questioned,
and see on the subject Pincke v, Curtis, 4 Bro. Ch. R. 329. Lloyd v. CoUett, 4 Bro. Ch. R.
469. Ormerod v. Hardman, 5 Ves. 736. Seton v. Slade, 7 Ves. 265. Hall v. Smith, 14 Ves.
426. Wynn v. Morgan, 7 Ves. 202. Alley v. Deschamps, 13 Ves. 228. Radcliffe v. Warring-
ton, 12 Ves. 326. 1 Ball & B. 68. Morgan v. Shaw, 2 Meriv. 140. Levy v. Lindo, 3 Meriv.
84.; and what is said in Hudson v. Bertram, 3 Madd. R. 447. Boehm v. Wood, 1 Jac. & W.
419. Morse V. Merest, 6 Madd. 26. Doloret v. Rothschild, 1 Sim. & Stu. 590. Coslake v. Till,
1 Russell, 376. Newman v. Rogers, 4 Bro. Ch. R. 391. Lewis v. Lechmere, 10 Mod. 503. ||[In
the case of non-completion of the title by the day appointed, if the vendee, immediately upon
the vendor's failure in that respect, demand a return of the deposit, and distinctly refuse to go
on with the purchase, the court will not compel him ; but if he acquiesce in the delay, know-
ing the state of it, or do not sufficiently declare his determination not to proceed in the pur-
chase, he will not be allowed to resist the performance afterwards upon that ground. Pincke,
V. Curtels, 4 Bro. Ch. R. 329., and the case of Ambrose v. Hodgson therein cited. Vernon v.
Stephens, 2 P. Wms. 66. However, in either case, if any injury would accrue to the other
party from the failure, or if the circumstances which occasioned it ate likely to create any
embarrassment, or to protract the final completion of the agreement for any unreasonable
time, the court will set it entirely aside. In the case of Mackreth v. Marlar, at the Rolls,
Juli/ 10. 1786, Sir L. Kent/on decreed a contract for the purchase of an estate to be delivered

up.

138 AGREEMENTS.

up, the purchaser having died shortly after the contract, and a suit having been instituted for
ail account of assets, which was then dependinff. The purchaser had agreed to complete his
purcha-sc on or before the 50th of November ; he died on the 12th of January following, and
the vendor filed this bill in the beginning of the year 1785. This decree was, that the de-
fendants, the executors of tlie purchaser, should deliver up the contract to the plaintiff the
vendor, and that the plaintiff should retain his costs out of the deposit. 2 P. Wnis. 67. note 1.
Eijuity, too, distin;,'uiihes between those cases, where the one party having performed part of
the a"reenient, is rendered unable to perform the whole by some subsequent accident ; and yet,
notwithstanding the part performance, is in statu quo, and those where after such part per-
formance he is not in statu quo, and in the latter holds him entitled to a performance from the
other party, though it refuses it in the former. To this distinction must be referred the dif-
ference of decision in the cases of Earl of Feversham v. Watson, Rep. temp. Finch. 445.
a Frecm. 35. S. C. Meredith v. Wynn, Pr. Ch. 312. Gilb. Ch. 242. S. C. 1 Eq. Ca. Abr. 70.
1. J 5. S. C. Gilb. Eq. II. 170. S. C. If the plaintiff has taken all necessary steps to perform
lis part of the agreement, but has been prevented by the defendant, his endeavours will be
considered as equivalent to perfomiance Blackwell v. Nash, 1 Stra. 535. Hotham v. East
India Company, 1 Term R. 658. Though it be generally said that contracts are entire, and
shall be perfonned in toto, or not at all, yet there are cases in which the courts will decree a
performance, notwithstanding a partial failure, as in the case of marriage agreements, in favour
of a wife or children, where there has been a failure by the father's or mother's relations in
the part they had engaged to perform. Earl of Feversham v. Watson, suprk. Perkins v.
Lady Thornton, cited in Pyke v. Pyke, 1 Ves. 376.; or of part becoming illegal by a subse-
quent statute. Dr. Bettcsworth v. Dean and Chapter of St. Paul's, Sel. Ca. Ch. G6. ; or of
E art exceeding the power of the contracting party. Pawsey v. Bowen, 1 Ch. Ca. 2J. Carap-
ell V. Leach, Ambl. 740. So in the case of a sale of an estate by lots, though the vendor can-
not make a good title to all the lots, yet the court will oblige the purchaser to take those to
which a good title can be made, if they can be separated from the others without being
lessened in value. Poole v. Shergold, 2 Bro. Ch. R. 118.]

2 Ch. Ca. 17. As where by a marriage agreement the son's intended wife was

to have more than would have been left for the father (though

indebted), his wife and two daughters unpreferred, the Court

would not decree it ; principally, by reason of the extremity of

it, but left the party to his remedy at law.

Vera. 227. So where A. articled for the purchase of B.^s estate, pretending

V ^'^b^k''" ^^ bought it for one whom B. was willing to oblige, and thereby

of Bucks" ^ S^^ ^' somewhat cheaper, when in truth he bought it for an-

[(a) In the Other (a), equity would not decree an execution of this agreement.

«T °K^T'' Irnham v. Child, 1 Bro. Ch. R. 95., Lord Thurlow is reported to have said, that

^ he should be very sorry to lay it down, that a man treating with a third person in trust for

^ a second, whom he had refused to deal with, could therefore set the contract aside ; that

no case had gone so far; that Phillips v. Duke of Bucks was upon a difference of price."

But in the case of Eyre v. Popham, M. 14G.3., Lord Bathurst held, that an acreement

entered mto under the circumstances stated by Lord Thurlow, was not that fair acreement

which ought to be decreed in specie by a court of equity.] iJSee Davis v. Symonds,^ 1 Cox's

Fellowes v. ||But \i A. in contracting with B. falsely represent himself as

1 Sim 63 '*^'^' *^^ '^^^"^ °^ P' ^"^ thereby obtains better terms, the court will

notwithstanding enforce the contract, unless A. knew that such

would be the effect of the misrepresentation.
Scott V. Han- Where a piece of land imperfectly watered was described in
tee Wetu™v"' ^^^ Particular as uncommonly rich water meadow, it was held
Stubbs,' ' ^* ^^^^ ^^'^ ^'^^ "°t such a misrepresentation as would avoid the
iMsdd.so. sale.
Cadman v. Homer, is Ves. lo.

L^t'cr"'^' . ^^^^^ on the face of an agreement a specific sura was to

3Att,*385. , ^'^'^" ^°^ timber; but it was shown by parol testimony that

the dcfeudants were iiiducetl to give that sum by a representation

that

(B) What good in Law, and specifically enforced in Equity, 1S9

that it had been valued by two timber merchants, the agreement
was not enforced.

So, where an agi'eement was to pay so much rent, but it ap- Woollam r
peared in evidence that the defendant agreed to the rent on the Hearne,
plaintiff's false representation that it was the rent he paid, a spe-
cific performance was refused.

So, where the defendant had executed the agreement on the Clark v.
faith of a parol agreement by the plaintiff which was unper- Grrant, i4Ves.
p J • i^ n n 1 *iy. J and see

lormed, a speciiic pertormance was retused. Beaumont v.

Dukes, 1 Jac. 422,

And a party obtaining an agreement by a partial misrepresent- S^^'^J'^""^ ^*
ation is not entitled to a specific performance on waving the part j j^^ "&^w
affected by the misrepresentation. 112.

Where the particulars of sale state it to be without reserve. Meadows v.
and puffers are employed by the vendor, a specific performance ^"J"^*^' „
will not be decreed. 1| ^ "^ •

So, where A. on the marriage of his daughter to B. covenanted Bromley and
that B. should have his lands at his death cheaper than any Jefferies,
other person, and he lived twenty years after, and devised to B. n^^^ Emerv t
1000/. and to his daughter, ^.'s wife, 500/. and he devised the Wase, sVes. '
lands to his grandson ; the court refused to decree an execution 846. Brodie v.
of the agreement, because of the uncertainty of it, and it not ^tv^'"^?^'^
being mutual ; B. not being bound to take it at any price. ^^^ Lyndsay v.

Lynch, 2 Scho. & Lef. 7.|i

An agreement for a purchase being obtained by an attorney 2 Vern. 652.
from an old woman of ninety, and several suspicious circum- ^^^ j ^^^
stances appearing, the court would neither decree it to be car- temp. Talb.
ried into execution against the heir at law, nor to be delivered 2.56. Savage v.
upon a cross bill exhibited for that purpose ; but left the parties Taylor, S. P.
to their remedies at law.

But as these cases, and all others on this head, depend so much [The Court
upon circumstances, and are to stand or fall according to the de- will not com-
grees of fraud or circumvention attending them, and proved in Pf ^ P"*"" ,
the cause, or by what appears unreasonable on the face of them ; ^ title which
I shall only observe, that a court of equity will much more easily is at all doubt-
be prevailed on to dismiss a bill which prays a specific execution ful ; Shapiand
of an unreasonable agreement (a), than set aside an agreement, nu r^^c'
though not strictly fair (b), on a bill for that purpose ; for this Cooper v.
deprives the party of what he had a right to by law ; and Denne, 4 Br.
that where such agreements are set aside, it must be on refund- Ch. R. so. nor
ing what was bona fide paid, making allowances for improve- posg^vv^here a^'
ments, Src. (c) party has for-

borne to insist upon an agreement for several years; Scolefield t. Whitehead, 2 Vern. 127.
Wingfield v. Wheley, 5 Vin. Abr. 534. pi. 58. Powell v. Hankey, 2 P. Wms. Orby v. Trigg,
9 Mod. 2. IJMoore v. Blake, 1 Ball. & B. 62.|| unless the delay can be accounted for by special
circumstances; Eq. Tr. c.4. § 27. nor in case of a written agreement, afterwards discharged
by parol ; Goman v. Salisbury, 1 Vern. 240. Ld. Milton v. Edgeworth, 6 Br. P. C. 580.
Legal V. Miller, 2 Ves. 299. nor in the case of a sale by auction, where an accident has hap-
pened to cast a damp upon the sale, though without blame imputable to any one ; as where
the vendor's agent, known to be such to the company pi-escnt, bid for the purchaser ; Twining
V. Morrice, 2 Br. Ch. R. 326. IJSmith v. Clarke, 12 Ves. 483. Sed vide Meadows v. Tanner,
5 Madd. 34. II nor if the agreement be to do a thuig which would tend to extortion, or pro-
mote

140 AGREEMENTS.

mote inebriery ; Mythwold v. VValbank, 2 Ves. 238. ||See Stone v. Liddcsdale, 2 Anstr. 533.\\
nor if damages be stipulated ; Woodward v. Gyles, S Vern. 119. But a penalty in general will
not Ite allowc<l to release parties from their agreements ; it being usually designed merely as a
medium for securing the performance of the contract. Parks v. Wilson, 10 Mod. 517. Chil-
liner v. Chilliner, 2 Ves. 528. Sloman v. Walter, 1 Bro. Ch. R. 418. Howard v. Hopkyiis,
8 Atk. 371. nor will they interpose, if the agreement be founded on an illegal consideration,
a< that of stifling a prosecution for felony, or for fraud, 3 P. Wms. 279. Keen v. Stukely,
Ciib. Eq. R. 153. Hanger v. Eyles, 2 fiq. Ca. Abr. 20. p. 16. Hickes v. Phillips, Pr. Ch.
575. (a) See ace. Savage v. Taylor, Ca. temp. Talb. 236. Young v. Clark, Pr. Ch. 538.
Vaughaa v. Thoinas, 1 Bro. Ch. R. 556. Davis v. Symonds, Scac. 1787. (6) Solemn con-
Tcyaiices, releases, and agreements by parties, are not slightly to be blown off and set aside,
per Ld. MaccUxJUU, Cann v. Cann, 1 P. Wms. 227. ||See Stockley v. Stockley, 1 Ves. & B.
31. II Equity therefore will not avoid a reatonable andjfair agreement^ though founded on mis-
take, i-rank v. Frank, 1 Ch. Ca. 84. Stapleton v. Stapleton, 1 Atk. 10. or though the party
were intoxicated, jjsce Cragg v. Holm, 18, Ves. 14.|| or in prison, at the time he entered into
it, or some paternal authority were exerted, and some benefit accrue to the father under it.
Cory V. Cory, 1 Ves. 19. Hinton t. Hinton, 1 Ves. 632. Kincliant v. Kinchant, 1 Bro. Ch.
R. SCO. ||See Poth. torn. 1.17. Brown v Carter, 5 Ves. 576. Hawes v. Wyatt, 2 Cox, 263-
3 Bro. C. C. 156. Wycherley v. Wycherley, 2 Eden, 180.|| It will not decree a forfeiture
after an agreement, in which, if there were a mistake, it was the mistake of all the parties to
iu PuUen v. Ready, 2 Atk. 592, Maiden v. Merril, 2 Atk. 8. (c) Savage v. Taylor, Ca.
temp. Talb. 236. For cases of Fraud, vide infra, tit. Fraud (B).] JlAnd see Bowes v. Heaps,
3 Ves. & B. 117. Dalbiac v. Dalbiac, 16 Ves. U6.|j

2. Of voluntary Agreements.

3 Co. 81. b. As men have a right to their acquisitions, so may they dispose

*.- i^^ ,,"2' of them at their pleasure, and without valuable consideration:

443. Uy. 33b. , .„ * ' , , . 1.1

b. 2 Bulstr. but 11 a man promises to convey lands, or to give goods, without
225. valuable consideration, or without delivering possession of them,

t(a) Though this alters no property, nor has the party any remedy in law or
^wedThis ^' ^^"^ty> ^^ being nudum pactum unde non oritur actio, (a)
maxim from the civil law, yet we do not agree with the civilians in their definition of what
constitutes a nudum pactum, the want of consideration not being regarded by them. In their
law, " Nuda convenlio est, qucB in nudis placiti et conventionis finibus stat, nee certuvi novien
" habetu, nee uUam obligaTuJi causam prceter eonventionevu" D. 1. 7. § 1. 2. and 4. de Pact. 1. 27.
Vinnius, in his Commentary on the Institutes, p. 578. explains some of the terms of this
definition. ** Dtto tunt conventionum genera ; unum eorum, ques spedale nomen habent, ex quo
" genere sunt cmplio-venditio, locatio-conductio, societas, mandatum, depositum, commodatum,
•» pignut, et similet contractus, qui, quod certum novien habent, dicuntur contractus nominati, et
" oUigniionem actionemque producunt, non utique propter nomen, quod extriiisecum quid est atq:
** accidcns ; sed propter utUitatem commercii, cujus indicium est, quod certo ac proprio nomine
** appellantur; vel potius quia hee conventiones ob frequentiorem mum talem accepere vim ac
" naiuram, qiuB etiamsi nihil specialiter dictum sit, ex ipso nomine satis intelligatur. Grot. L. 2.
* de Jure Bell, et Pac. 12. n. 3. Alterum genus est earum conventionum, qua: nomine quidem pro-
*♦ prio carent, sed quibus prceter consensum subest causa, ut hoc exprimit jurisconsidtus. D. 1. 7.
** § 2. Et hcB quoque cimventioncs ob/igationem et actionem pariunt. Causam definio dationem
«• vel factum certd lege, puta, si quid ttbi dedi aut feci eu lege, ut vicissim niihi aliquid dares aid
*' facercs." See further Fonbi. Notes on Eq. Tr, p. 326. A mere agreement by a creditor to
take a less sum than that which is owing to him, is nudum pactum. Heathcote v. Crookshanks,
a Term R. 24.; ||see tit. Accord and Satisfaction.^^ As to the nudum pactum, see Elsee v.
Gatward, 5 Term R. 143. A consideration executed will not support a subsequent promise,
unless the act were done at the request of the party promising. Dy. 272. Lampleigh v.
Braithwaite, Hob. 105. Hayes v. Warren, 2 Barnard. 141 . Robertson v, St. John, 2 Bro. Ch.
R. 140. or unless the party promising were under a moral obligation to do the act himself,
or to procure it to be done. Church v. Church, cited in Hunt v. Wotton, Sir T. Raym. 259.
Turner v. Watson, Bull. Nisi Prius, 147. (4th edit.) Trueman v. Fenton, Cowp. 544. An
agreement to settle boundanes, though nothing valuable is given, implies sufficient consider-
auon extending to both parties, who have an interest in shunning contention. Penn v. Lord
Baltimore, 1 Ves. 444.]

But

(B) What good in Law, aiid specifically enforced in Equity. 141

But if it be done by deed duly executed, under seal, this is pi, 308 309.
good in law, though there be no consideration, or no delivery Yelv. 196.
of possession ; because a man is estopped to deny his own deed, Cro. Jac. 270.
or affirm any thing contrary to the manifest solemnity of con- li'J^^^" A,V*
trading, {a) 2 Black. Com.

446. [A consideration is by our law necessary, though the agreement be evidenced by writings
unless the writing, as in the text, from its being of the highest solemnity, import a consider-
ation, or 'inless it be negotiable at law, and the interests of third persons be involved in its
efficacy ; for in this latter case as between the original parties, the want of consideration may
be averred, and will bar the plaintiff from recovering. Pearson v. Garnett, 4 Mod. 242.
JefFeries v. Austin, 1 Stra. 674. Gilb. Lex Praetoria, 388, 289. Fonbl. Notes on Eq. Tr. 535.
j|And so also between third parties, if it appear that the holder gave no consideration for the
instrument. Rees v. Headfort, 2 Camp. 574. Reynolds v. Chettle, ibid. 596. Patterson
V. Hardacre, 4 Taunt. 1 14. Delauney v. Mitchell, 1 Stark. 439.|| (a) Though the agreement
bfijinder seal, yet if there be no considqratJPOj. .equity will not agree specifically ; for as in
suchcase*TR5minal damages only^ould be recovered at law, equity, which follows the law,
will not give more' suT)stantial relief. iVes. 450. 1 Atk. 10. Fursaker v. Robinson, 1 Eq. Ca.
Abr. 123. Pr. Ch. 475. 8, C. Gilb. Eq. Rep. 479. S. C Tudor v. Anson, 2 Ves. 582.]

II Notwithstanding the case oi Fur saJcer \. Robinson, suprh, Randall v.
and the dictum of Lord Northington in Wycherly v. Wycherly, Randall, Prec.
2 Eden, 177, that he did not recollect a precedent of specific per- in Ch. 464.
formance of a voluntary agreement, tliere are precedents both ^^^'v y . "^'
ways. 427, Husband

V. Pollard, 2 P. Will. 467. Wiseman v. Roper, 1 Ch. Ca. 84. Frank v. Frank, Ibid. Pea-
cock v. Monk. 1 Ves. 135. Underwood v. Hitchcox, 1 Ves. 280. Griffin v. Hanson, 4 Ves.
344.

In some cases the court has held that it has a discretionary Prec.Chan.7S.
authority.

It seems to be now settled that the court will not interfere Morrice v.
against volunteers, unless in case of fraud ; noYfoi' them, by en- f Y|^"f qi'
forcing the specific performance of a mere voluntary agreement. Stapeiton v.
Stapelton, 1 Atk. 10.; and see 3 Atk. 399. 18 Ves. 149. Matthews v. Lee, 1 Madd. R. 565.
Crosbie v. M'Doual, 15 Ves, 148.

Unless, indeed, in those cases where a specific performance of Goring v.
marriage articles has been decreed in favour of collaterals, as wfo q „ ' j
being within the consideration of marriage. & Strode °

3 P. Wms. 245. Edwards v. Warwick, Ibid. 175.

And this cannot be done against a purchaser subsequent to Sutton v.
the articles or setdement. Pa^ ^-^"1*.

5 Meriv. 249.

And a voluntary covenant in a marriage settlement in favour Johnson v.
of a stranger, clearly cannot be enforced at law or in equity. I:'^]?.^'^'''

If, however, a voluntary deed is sufficient to pass the subject Colman v.

out of the conveyor, it will be specifically enforced in equity as p p ' ^ ^""^

a trust executed, and not resting in contract, as where stock is j *yg^ ■' '^^

actually transferred, or lands conveyed to a trustee, the court Ellison v. El- *

will execute the agreement as against the trustee and author of lison, 6 Ves.

the trust.l| Ir, f,f.v /' > 6 i, /< hi ■ - ■ /» / i. ^r > ,. Jf^' Griffin v.
II ar(^ r.^-'^r /j'l /f V Id:!'- .' < I Cjk.U' XYisfan8on,4Ves.

356. Pulvertoft V. Pulvertoft, 1 ^ V es. 99. Lechmere v. Carlisle, 3 P. Will. 222. Smith v.

French, 2 Atk. 24.5. Antrobus v. Smith, 12 Ves. 46.; and see Willan v. Willan, 16 Ves. 82,

Bayley v. Tyrrell, 2 Ball & B. 363.

So in equity, voluntary conveyances are good against the par- Vem. loo.
ties, and cannot be revoked; nor will the court interpose in 1^2. 42'a456.

behalf

1V2 agreemp:nts.

464. 1 Ch- R. behalf of one volunteer against another ; but if they affect cre-
173. sCh. R. jitoj-s purchasers, or younger children, the court will set them
•132. NV ornill • i *^ » ^ o

v.Jac"b, «Slile. ,„ .,

.•5 Meriv. 271.11 For cases where voluntary deeds and settlements are held void as against cre-
ditors, &c. see tit. Fraud.
2 Vent. 365. If there be a defective conveyance, without an equitable con-

1 Vern.37. sideration, a court of equity will not oblige the party to make
1 0^11.^147. ^t good, though there be a covenant for further assurances ; as

2 Krcem. 65. if a man makes a feoffment to a stranger, without livery, the
[(a) Equity will feoffor, or his heir, shall not be obliged to make good that feoff-

not supply the ^lent, but it shall be construed in equity to be an estate at will,
want Ota sur- -^ • i / \

render of a as it IS at law. (a)

cojjyhold in favour of a bastard daughter against the heir of her father, though the father had
covenanted to convey it, and make further assurances ; for the daughter is, in consideration of
law, a mere stranger, nuUiusJilia, and the conveyance is merely voluntary. Fursaker v. Robin-
son, lEq. Ca.Abr. 123.]

Abr. Eq. 24.5. If an annuity is granted by one to his housekeeper, with a
pi. 7. 93. p. bond for payment of it, and the bond is lost, equity will decree
11 nf"r^ payment of the annuity ; for service is a consideration, and no
the payment turpis contractJis shall be presumed, unless proved, {b)
of a bond given to an innocent woman whom the obligor hath seduced, for it is pnBmium pu-
doris. Marchioness of Annandale v. Harris, 2 P. Wms. 432. Eq. Cas. Abr. 87. p. 6. S, C.

3 Bro. P. C. 445. S. C. Cray v. Rooke, Ca. temp. Talb. 153. S. P. And a bond of this kind
hath been holden good at law. Turner v. Vaughan. 2 Wils. 339. So where a provision has
been made for her by an ineffectual conveyance, it will interpose in her behalf both against the
grantor himself and his repreientative. Ord v. Blackett, cited in 2 P. Wms. 435., and Carew
y. Stafford, Ibid. See the last case in Ambl. 520. by the name of Gary v. Stafford. Nor will
it relieve against a bond given even to a common prostitute, if there be no fraud in the case,
though the application be made by the representative of the obligor. Hill v. Spencer, Ambl.
641, ; a circumstance which hath been formerly thought to strengthen the ground for relief.
Matthew v. Hanbury, 2 Vern. 187. Alitor where there is fraud, as where the plaintiff claims it
as prcEmium pudicilia, and she is found to have been a prostitute prior to the time of her
having been connected with the party giving it. Clark v. Periam, 2 Atk. 333. But bonds of
this kind entered into ex turpi causa are void ; as where a woman, knowing a man to be mar-
ried, submits to his temptation. Priest v. Parrot, 2Ves. 160.; or where a woman having
ignorantly married a man who had another wife alive, upon coming afterwards to the know-
ledge of his situation, continues to live with him. Lady Cox's case, 3 P. Wms. 339. So
where the condition of the bond was that the parties should live together in a state of forni-
cation. Walker V.Perkins, Administrator, 3 Burr. 1568. 1 Black. R. 517. S.C] put not-
withstanding the case of Priest v. Parrot, it is decided that a bond given by a married man to
_a woman who had cohabited with him knowing him to be married, on the cessation of
intercourse may be enforced at law. Nye v. Moseley, 6 Barn. & Cres. 133., and see S. C. mm.
Knye v. Moor, 2 Sim. & Stu. 260.|1

2Ven7'6?r^' ^^^^"^'^y ^i^^ "ot carry a merely voluntary covenant beyond the

letter of it.
[(c) This rule In decreeing the execution of agreements, it regards the. intent
inlhvour of^ ^^ the parties, and does not confine itself to the strictly legal
issue male by operation of the words. Where, therefore, marriage articles,
many cases ; literally taken, would give the husband or wife an estate tail, it
first, where decrees a strict settlement ; for otherwise the provisions for the
cle7t^!^in '^^"^ (^)' ^^^ ^'^j^^^ ^f ^^^ settlement, might be defeated, (rf)]
Jones V. Laughton, 1 Eq. Ca. Abr. 392. pi. 2. Nandick v. Wilkes, 1 Eq. Ca. Abr. 393. pi. 5.
Cusack v. Cusack, 1 Bro. P. C. 470. Trevor v. Trevor, l P. Wms. 622. Dodd v. Dodd, Ambl.
274. Robmson v. Hardcastle, sTerm R.252. So where there are articles before marriage,
and a settlement IS made after marriage in the words of the articles, as in Streatfield v. Streat-
field, Ca. temp. Talb. 176. ; or where there are both articles and settlement before marriage,

and

(B) What good in Law, and specifically enforced i?i Equity. 143

and the settlement is made in pursuance of the articles, as in Honor v. Honor, 1 P. Wms. 125.
Roberts v.Kingsley. 1 Vcs. 258. But otherwise, where the settlement made before marriage is
not in pursuance of the articles; for then the parties will be presumed to have come to a new
agreement. Legg v. Goldwire, cited in Ca. temp.Talb. 20. Partyn v. Roberts, Ambl.515.
And the same equity arises to the issue female. Barton v. Hastings, Gilb. Eq. R. 113. West
V. Erissey, 2 P. Wms. 349., and Hart v. Middlehurst, 5 Atk. 371. But this must be under-
stood where the articles make no other provision for them. Powell v. Price, 2 P. Wms. 535.
{d) But where this mischief does not occur, or where the intention of the parties to create an
estate of inheritance is not sufficiently explicit, it seems the rule is not applicable. Chambers
v. Chambers, Mos. 333. Green v. Eakins, 2 Atk. 476, Partyn v. Roberts, Ambl. 315. Cordwell
V. Mackrill, Ambl. 515. Highway v. Banner, 1 Bro. Ch. R. 584.

In contracts proper for a specific performance, equity considers Money cove-
them often as actually performed {a) from the time they are entered nanted to be
into. Money covenanted to be laid out in land, it considers as '^id out in
land; and land articled to be sold, it treats as money; and in- ^^"'j' "'''Is^
vests each with the qualities of the other. a,,,! pot the

executor. Chaplin v. Homer, 1 P. Wms. 483. Scudamore v. Scudamore, Pr. Ch. 540. Ed-
wards V. Lady Warwick, 2 P. Wms. 171. Lechmere v. Earl of Carlisle, 3 P. Wms. 221.] [jSee
Thornton v. Hawley, 10 Ves. 219.|1 [Settled on the wife of a freeman of London in heu of
dower, will not bar her of her customary part. Babington v. Greenwood, 1 P. Wms. 530. It
will not be personal assets. Earl of Pembroke v. Bowden, 3 Ch. R. 115. 2 Vern. 52. S.C.
Lawrence v. Beverley, 2 Keb. 84 ) . cited also in 1 Vern. 47 1 . It shall be subject to the curtesy
of the husband. Sweetapple v, Bindon, 2 Vern. 536. Otway v. Hudson, 2 Vern. 583. Cun-
ningham V. Moody, 1 Ves. 176.; but not to the dower of the wife, because she is not dowable
of an equitable estate. It shall pass as land by a will, under sweeping words, if at the time of
making the will the testator has an equitable estate therein. Davie v.Beardsham, 1 Ch.Ca. 39.
Prideaux v. Gibben, 2 Ch. Ca. 144. Milner v. Mills, Mos. 123. AUeyn v. Alleyn, Mos. 262.
Greenhill v. Greenhill, 2 Vern. 679. Pr. Ch. 320. S. C. Shorer v. Shorer, 10 Mod. 39. Lingen
V. Sowray, 1 P. Wms. 172. Pr. Ch. 400. S. C. Langford v. Pitt, 2 P. VVms. 629. Guidot v.
Guidot, 3 Atk. 254. Potter v. Potter, 1 Ves. 437. Gibson v. Lord Montfort, 1 Ves. 494,
And it will not pass as money under a general bequest to a legatee, unless described as so much
money agreed to be laid out in land. Cross v. Addenbroke, and Fulham v. Jones, cited in a
note 5 P. Wms. 221.] [[See Biddulph v. Biddulph, 12 Ves. 16I.H [Where a recovery would be
necessary to give a person the absolute interest in it, if land, a fine will not be sufficient.
Colwell v. Shadwell, cited in 1 P. Wms. 471. 485. Edwards v. Countess of Warwick, 2 P.
Wms. 171. Collet V. Collet, 5 Atk. 11, TrafFord v. Boehm, 3 Atk.447. Carter v. Carter,
Ca. temp. Talb. 272.] USee 7 G. 4. c. 45. § 1, 2. empowering a court of equity, where money
is directed to be invested in land, to be settled in such manner that the first tenant in tail
might bar the estates tail and remainders, to order the money to be paid to the tenant in tail;
and 6 Ves. 116. 156. 8 Ves. 609. 9 Ves. 462. 1 Jac. 234.1| [But equity will not consider
money as land, unless the covenant or direction to lay it out in land be express. Symons v.
Rutter, 2 Vern. 227. Curling v. May, cited in 3 Atk. 255.] iJSee Pearson v. Lane, 17 Ves.
104.11 [And money thus circumstanced shall be deemed as part of the personal estate of one
who might have aliened it, there being no other use but to himself. Chichester v. BickerstafF,
2 Vern. 295. Pulteney v. Earl of Darlington, 1 Bro. Ch. R. 236. Wade v. Pagett, 1 Bro. Ch.
R. 368. ; but see Lechmere v. Earl of Carlisle, 5 P. Wms. 220. Ca. temp. Talb. 90. S. C —
Where land is agreed or directed to be gold, it seems the creditors of the bargainor may compel
the heir to convey the land. Best v. Stamford, 1 Salk. 154. (c) Therefore the personal
estate of a man, who, in consideration of marriage with an orphan of a citizen of London,
had covenanted to take up his freedom of the city, was divided according to the
custom, though the covenant was not performed. Frederick v. Frederick, 1 P. Wms. 710.
iBro.P.C. 7.]

3. Of the Manner in iiohich they are to he performed.

If an agreement be to quit the possession of lands, the court Qerrard v.
will not decree a conveyance of the lands themselves ; but if the Vaux, Vern.
agreement was to convey the lands, it is said that the court would 121. How
have decreed the agreement, though the party was not apprized agrfements
what estate he hadlr. the lands. Z'j^ZZ-

cuted at law, vide heads of Assumpsit and Covenant,

144

AGREEMENTS.

If one is bound to transfer 300/. East-India stock before such
a time, which he neglects to do, and the stock is much risen, he
shall be obliged to transfer the stock in specie, and account for
all dividends from the time that it ought to have been trans-
ferred.

sure of damages at law for not transferring stock, see Shepherd v. Johnson, 2 East, 211.

M'Arthur v. Lord Seaforth, 2 Taunt. 257. Harrison v. Harrison, 1 Car. & P. 412.j|

If a creditor agrees with his debtor to take less than his debt,
so that it be paid precisely at such a day, and the debtor fails of
payment, he cannot be relieved, for cujics est dare, ejus est dis-
ponere.
lieve in such case, if the security be bettered. 1 Ch. Ca. 110.] HSee ante, Accord and Satis-
faction!^

If money be lent on a mortgage, at 5 per cent, and the mort-
gagor covenants io pay 6 per cent, if he make default for the
space of sixty days after the time of payment ; if he makes de-
fault, the court will not relieve, this being the agreement of the
parties, [a)
Wyse, 2 Vern. 289., and in Shode y. Parker, 2 Vem.3I6., the interest was reserved at 6l. per.
cent, with an agreement to accept 5l. per cent, if duly paid ; a statement doubtless correct, as
it reconciles the case to the other decisions upon this point, which at present it clashes with.
See Jury V. Cox, Pr. Ch. 160. Walmsley v. Booth, Barnard. Ch. R. 481. Nichols v. May-
nard, 3 Atk. 519. 5 Burr. 1374.] USeejaoii. tit. Mortgage}^

If a lessee for a long term of years covenants to lay out 200/.
upon the premises within the first ten years, and lays out but
30/. and after the expiration of thirty years of the lease, the
lessor brings an action o^ covenant, and recovers 150/. damages,
equity will neither relieve against the damage, nor decree the
money to be now laid out in the improvements ; for though the
damages seem excessive, yet the jury were proper judges ; and
to degree it to be laid out now the lease is almost expired, is not
proper ; for it is probable the lessee would not be so careful in
laying it out in lasting improvements, as he would have been if
laid out at first.

II If a regular corporate resolution has been passed, and upon
Queenbo-°"° ^^^ ^^^^^ *^^ ^^' expenditure has been incurred, the court will
rough, 1 Sim. compel the corporation to make a legal grant in pursuance of the
resolution, though not under the corporation seal.

Where there is a contract to sell at a valuation, by A., B., and
C, the court will compel the vendor to permit the valuation.

Where the vendor of an estate having lost his title-deeds,
agreed to give real security for the title, the court held that per-
sonal security was not sufficient, and that he must purchase real
estate for the purpose.

If a person possessed of a term, contracts to sell the fee, he
rSwans't. 54.; *^^""ot compel the purchaser to take, but the purchaser can com-
andseeioVes. pel him to convey the term, and the court will arrange the
316. equities between the parties.

Ormond v. Equity has the power to compel the specific performance of a

Anderson, complete contract, but cannot add any term not agreed on.]!
2 Ball & B 569. ; and see Id. 28«.

Gardner v.
PuUen, 2 Vern.
394. Vide
xupr^CB), 1.
note c. II And
as to the mea-

Vern. 210.
[Ambl. 332.
But qu. whe-
ther equity
will not re-

2 Vern. 134.
Halifax v.
Wiggins,
[(a) As this
case is stated in
Lady Holies v.

Vern. 31 6.
Barker v.
Holder, 1 Eq.
Ca. Abr.28.
pi. 5. S. C.

Marshall v.

& Stu. 520

Morse V.

Merest,

6 Madd. 26.

Walker v.

Barnes,

3 Madd. 247.

Wood V.
Griffith,

II 1. Of the Firsts Second^ and Third Sections of that Statute.^

T^HE common law required no other solemnity in passing lands ^o. Lit. 48.

or tenements, but that of livery and seisin, which being a e'|o q'n' /-i,
translation of the feud coram paribus curtis^ and testified by them, j^qiJ^ Abr. 7.
was held an act of sufficient notoriety to direct the lord of whom
to demand his service, and strangers against whom to commence
their actions ; but now,

By the 29 Car. 2. c. 3. § 1. it is enacted, " That all leases, 29 Car 2. c.5.
" estates, interests of freehold, or terms of years, or any uncer- § ^'
" tain interest of, in, or out of any messuages, manors, lands,
*' tenements or hereditaments, made or created by livery and
" seisin only, or by parol, and not put in writing, and signed
*' by the parties so making or creating the same, or their agents
" thereunto lawfully authorized by writing, shall have the force
" and effect of leases or estates at will only, and shall not, either
" in law Qr equity, be deemed or taken to have any other or
*' greater force or effect ; any consideration for making any such
** parol leases or estates, or any former usage to the contrary
" notwithstanding.

" Except leases not exceeding the term of three years from § -•
" the making thereof, whereupon the rent reserved to the land-
" lord, during such term, shall amount unto two third parts at
" the least, of the full improved value of the thing demised."

Also it is enacted, " That no leases, estates or interest, 5 '•

*' either of freehold or terms of years, or any uncertain interest,
** not being copyhold or customary interest of, in, to or out of
*' any messuages, manors, lands, tenements or hereditaments,
" shall be assigned, granted or surrendered, unless it be by
** deed or note in writing, signed by the party so assigning,
" granting or surrendering the same, or their agents thereunto
*' lawfully authorized by writing, or by act or operation of law."

11 Notwithstanding the words of the first section, it is settled Clayton v.
that parol leases for more than three years have the effect of Blakey,
leases from year to year, and require a notice to quit, in order ^„/g^ ' ' '
to determine them, the meaning of the statute being that such 5 Term R. 471.
leases shall not create a term. and Holt's

N.P.C. 47

A parol lease for three years, to satisfy the statute, must Rawlins v.
commence from the time of making, and cannot be made to r^ "m^'sc •
commence at a subsequent day. and see Ryl'ey

V. Hicks, Stra. 651. Legg v. Strudwick, 2 Salk. 414.

Where a lease had been made by deed for twenty-one years Hoby v. Roe-
to A.., who afterwards took B. into partnership, and A. and B. ^"JJ^' "^ T^"""-^-
made a parol agreement with the landlord, that if he would en-
large the building, they would pay him 10 per cent, on the cost,
in addition to the original rent, for the rest of the term, which

Vol. I. L exceeded

140

AGREEMENTS.

excccdeil three years, and the new building was consequently
made, the Court of Common Pleas held that this agreement
was not within the statute, for that as whatever was subsequently
built became part of the premises demised, it was a collateral
contract.

Though the statute does not require that an assignment should
he by deed, it absolutely requires it to be in writing, and there-
fore, where a parol assignment was made of a lease from year
to year granted by parol, it was held void under the statute.

The mere cancelling, in fact, of a lease, is not a legal sur-
render.
Archbishop of York, 6 East, 86. ; and see Doe v. Thomas, 9 Bam. & C. 288.

A surrender of a lease may be made without deed ; as where
a mortgagee wrote on the mortgage-deed, " Received of ^. B.
" for principal and interest, and I do release and discharge the
** within premises from the term of 500 years," this was holden
a sufficient surrender.

If the landlord accept an under-tenant as his tenant, with con-
Cook, 2 Barn, sent of the original lessee, and distrain upon his goods, this
* i^'^'pi'' amounts to a surrender of the original tenant's term, by oper-
v"scuUhorpe* ation of law, though there is no surrender in writing.
1 Barn. & A. 50. Stone v. Whiring, 2 Staik. 235. Hamerton v. Stead, 3 Barn. & C. 478.
Johnstone v. ^"^ ^ ^^^ notice to quit, though accepted by the landlord,

Hu.ldlestone, cannot operate as a surrender.

4 Barn. & C. 922

Whitehead v.

Clifford,

fi Taunt. 5 18.;

and see Ibid.

519.

Walls V. At-

Farmer v.

Rogers,

2 VVils. C6.

Dotting V.

Martin,

1 Camp. 518.

Roc dem.
Berkeley v,

Fanner v.
UojTcrs,
8 \Vils. 26

Thomas v.

If the landlord accept possession of the demised premises
from the tenant, he cannot subsequently sue him for use and
occupation,
in writincr.

although there is no surrender of the tenant's term

cbeson, 3 Bing, 462.

And so if the landlord let them to another tenant. ||

§ I.

2 Jones, 108.
Giiniorc and

II 2. Of Agreements tmthin the Fourth Section.\i

And it is further enacted, *' That no action shall be brought
whereby to charge any executor or administrator, upon any
special promise to answer damages out of his own estate, or
whereby to charge the defendant upon any special promise to
answer for the debt, default or miscarriages of another person ;
or to charge any person upon any agreement made upon con-
sideration of marriage, or upon any contract or sale of lands,
tenements or hereditaments, or any interest in or concerning
them ; or upon any agreement that is not to be performed
within the space of one year from the making thereof, unless
the agreement ujion which such action shall be brought, or
some memorandum or note thereof, shall be in writing, signed
by the party to be charged therewith, or some other person by
him thertunto lawfully authorized.

111. Of Promises by Executors, Administrators, &c.|l

The clause which enacts, that no action shall be brought, Sfc.

to charge an executor, S^c. extends not to promises made before, shutter
though to be performed after the making of the statute; for it i Freem. 466.
would be against natural justice, that a promise made upon good S- ^- Vent.
consideration should be destroyed by the retrospect of a law t\?.'ti^
which none could divine would be made. 227! 2 Show.

R. 1 6. S. C. ||Rann v. Hughes, 4 Bro. P. C. 27. 7 Term R. 550. n.jj

A. promised if the widow of an intestate would permit him to Tomlinson v.
be joined with her in the letters of administration, that he would ^^H'^^bl.
make good any deficiency of assets to pay debts. Lord Hard-
isoicke held this promise not within the act ; nor within the first
branch of the section, for A. was not administrator at the time
of making it ; nor within the second, for here is a new distinct
consideration.

The plaintiff in his declaration need not shew any note in writ- Raym. 45o,
ing, but it will be sufficient for him to produce it on the trial; ^^^' ^ Jones,
but if such promise is pleaded in bar of another action, it must g gaik ^i9
be shewn to be in writing, so that it may appear to the court to
be such a promise upon which an action will lie.

y2. Of Promises to answer for the Debt, Default, or Miscarriage

of another, jj

On the clause, that no action shall be brought on a special Salk. 27. pi.
promise to ansivei-for the debt, defaidt, &c. of another, it has been V'l^^ I* ^^*
resolved that if A. is about hiring a horse from B,, and C, to 249. LdrRaym.
encourage him to lend the horse, promises that^. should deliver 224. sLd.
him safe, this is a collateral promise, and an undertaking within Raym.
the statute; for C. subjects himself to an action on the breach o°^^'„^t^^^j
of the original contract by A., against whom detinue lies on the 250.
bailment. So if two come to a shop, and one of them contracts
for goods, and the seller does not care for trusting him, where-
upon the other says, let him have them, and I will undertake he
shall pay you ; but if the promise be, I will see you paid ; or I
will be your paymaster, it is otherwise. So if A. comes to B,
and tells him, let your horse to J. S. and I will see you paid the
hire ; there the hiring is to A. and not to J. S. who is considered
as servant to A. So, in all cases where the whole credit is given
to the undertaker, he alone is liable to an action.

[A doubt was formerly entertained, whether, if the undertak- g Term R. so.
ing of a third person were before the delivery, it were within the Cowp. 227.
statute. But the general line now taken, is, that if the person ^ ^^- Black,
for whose use the goods are furnished is liable at all, any promise " *
by a third person to pay that debt, must, in all cases, be in
writing.

If ^., in consideration that B. will stay proceedings in an action pisi, v. Hutch-
he had commenced against C. to recover a sum of money due inson, 2 Wils.
from C. to him, promise to pay that money, such promise must ^'*'
be in writing, for it is to pay a debt of another person still sub-
sisting : but where in consideration that the plaintiff in an action
of assault and battery against J. S. would withdraw his record, ^^ed v. Nash,
and forbear to proceed, the defendant promised to pay him 30/. iiQ^^^ijiether
the court held the promise not to be within the statute, for the [1,]^ case is

L 2 consideration

146

AGREEMENTS.

considerntion wns new, here was no subsistinf; debt ; it could not
be known before the trial whether the plaintiff would recover any
damages or not]

\\A., without the leave or licence of the plaintiff, wrongfully
rode the plaintiffs horse, and caused its death, and the defend-
ant in consideration that the plaintiff would not sue y^., promised
to pay the plaintiff for the damage sustained. Held, that as A.
was liable to the plaintiff for the wrong, this was a collateral
promise of the defendant, and consequently not being in writing
was void. II

[J. S. becoming insolvent, made a bill of sale to the defendant
of all his goods in his dwelling-house in trust to be sold for the
benefit of his creditors. After the defendant had taken possession,
the landlord came to distrain for rent, and to prevent the dis-
tress, and that the sale might go on, the defendant promised to
pay it This promise is not within the statute.]

ijlf -/4., at the request of B., enter jointly with him into a
bond to indemnify a third party, and B. promise to save A.
harmless from all loss by reason of the bond, this is not a pro-
mise requiring writing within the statute. {a)\\
indemnifv the plaintiff against all costs of a tithe suit, in consideration that the plaintiff (de-
fendant \n the tithe suit) would allow defendant to defend it in plaintiff's name. Adams v.
Dansey, 6 Bing. 506.

[Wherever a man is under a moral obligation (a), to do a thing,
and another does it without request, a subsequent promise to
pay is good, though not in writing ; as where an overseer pro-
mises by parol to pay an apothecary who, without his knowledge,
has administered medicines to a pauper.]
obligation on the overseers to provide medicines for the poor is a legal one, and it is at least
doubtful, whether in any case a mere moral obligation is a sufficient consideration to support
an express promise; it clearly is not sufficient to raise an implied promise. See the elaborate
note to Wennall v. Adney, 3 Bos. & Pull. 249. In Wing v. Mill, 1 Barn. & Aid. 104. the
court held that an action was maintainable by an apothecary against the overseer of the
parish where a pauper was settled, for medicines furnished to the pauper in another parish
where he lived, the overseer having expressly |)roraised to pay ; — but here also there was a
legal obligation on the overseers of the parish of settlement to provide for the pauper, which
they had acknowledged by making him a weekly allowance. In Atkins v. Banwell, 2 East R.
505. it was decided, that a parish where a pauper was taken ill and died, could not recover
the price of mrdicines and necessaries furnished to him against the parish in which he was
settled, since there was no legal obligation to reimburse the amount, and there was no express
promise; and see Lamb v. Bunce, 4 Maule & S. 275. There could be no ground for requiring
writing to such a promise as that in the principal case, since it is notwilhin thescopeof any clause
in the statute ; and see 1 Smith R. 305. 1 Dow. & Ry. 541. 1 Car. & Pa. 132. 5 Barn. & C. 738.||
Goodman v. |jSo also a promise to pay the debt of a debtor, in consider-

& A^*97 • '^"d ^'*°" ^^ ^"^ being discharged out of custody, is an original
promise, and not within the statute, since the debt is ex-
tinguished by the discharge, and the debtor ceases to be liable.
Castling v. Aubert, 2 East, 325. Anstey v. Marden, 1 New R. 124.

So also a promise to execute a bail-bond for A. B., in con-
sideration of the plaintiff forbearing to arrest him, is not within
the statute.

not overruled
by Kirkhani
V. Marter,

wPII

Kirkhiun v.

Marter,

a Barn. & A.

613. See

Maggsv.

Ames, 4 Bing.

474.

Williams r.
Leaper,
.•J Burr. 1886.
2 Wils. 308.

IjBampton v.
r*ftulin,
4 Bing. 264.||

Thomas v.
Cook, 8 Barn
& C. 728.
(a) Nor is a
promise to

Watson V.
Turner, Scacc.
Tr. 7 G. 3.
Bull.N.P.284.
(4th edit.)
11(a) But the

sec Williams
V. Leper,
2 Wils. 308.
Jarmain v.
Algar, Ry. &
Moo. 348.;
and sec 4 Bing.
474.

Cbater v.

Beckett,

7 Tcnn R. 20!

But an agreement to pay a composition on the debt of
another is within the statute, since the debtor remains liable.

Bo also in cases of promises to pay for goods, SfC. supplied to Anderson v.

a third party, if the third party is liable at all the promise is Hayman, i H.

within the statute, and requires writing; but if the articles are Black. 120.

supplied entirely on the credit of the promiser, so that the third ^^*.^"" ^'

party is not liable, then the promise is not within the statute. 2 Term JI.80.
Jones V. Cooper, 2 Term R. 80. Browning v. Stallard, 5 Taunt. 450. Colman v. Eyles,
2 Stark, 62. ; and see 4 Bing, 474.

And there is no distinction whether the promise is made before Matson v.
the goods are supplied, or afterwards. aTennR so

The word *' agreement" in the fourth section, is held to import Wain v. Warl-
not merely the promise on one side, but also the consideration on ters, s E^jst, lo.
the other ; and, therefore, in cases within the section it is necessary g g /"^ag
that both should appear in writing, and parol evidence is inad- Saunders v.
missible to shew either, [a) Where, however, a letter was written Wakefield,
by the defendant to the plaintifTs attorney, undertaking to pay the ^ Barn. & A.
debt of another, parol evidence was held admissible to shew the ^^^ ^-^-^^''^an
amount, and also that the person receiving it was the plaintiff's 15 ]5agt cj^^.
attorney ; and in several late cases the courts have gathered a (a) This de-
sufficient consideration from the import of the instrument, where cision was
it did not appear in very clear terms on the face of it. TmtA^FMoii'

in Ex parte Minet, 1 4 Ves. 190., and in Ex parte Gardom, 15 Ves. 28S. his lordship decided
against it ; but its authority is now established by Saunders v. Wakefield, 4 Barn. & A. 595*
and Jenkins v Reynolds, 5 Bro. & Bing. 14.'

Thus where the defendant wrote a letter to the plaintiffs, Boehm v.
**our mutual friends, Messrs. JR. J. S., having accepted the Campbell,
" underwritten bill (h'awn on them by your firm, I hereby give ^ ^}"^'}f'' .
" my guarantee for the due payment of the same, should it be ^"gtace *^'^™
*' dishonoured by the acceptors;" and a copy of the bill was 1 Holt,N.'p.C.
at foot: the court held that the consideration of forbearance to 15>. Pace v.
sue I{. J. (S., and of giving them time by taking a bill, suffi- Mi""sl'> 1 Bing.
ciently appeared on the face of the guarantee to satisfy the seifv^Mosd"
statute of frauds. 5 Bro. «ife Bing'

211. Stead v. Liddard, 1 Bing. R. 19(5. Benson v. Hippius, 4 Bing. 455*

But where the guarantee was in these words, "To the amount Jenkins v. Rcy-

** of 100/. consider me as security on J. CJs account; " it was ^'i|?' ^ ^'■'^•

held insufficient, for want of a consideration appearing. ^^^^ '"S* A^ '

V. Bromfield, 2 Chitt. 205. Morley v. Boothby, 3 Bing. 107. 10 Moo. 395.

Where the original guarantee is in writing, so as to satisfy the Gibbons v.

statute of frauds, it is not requisite that a subsequent acknow- M'Casland,

ledgment of the guarantee, relied on to take the case out of the ^ Barn. & A.

statute of limitations should be also in v/riting ; a parol ac- ^^°*ijefore ^he

knowledgment is sufficient. 9 q. 4. c. 14. :

for which see tit. Limitation qf Actions (E).

3. Of Agreements made upon Consideration of Marriage.

It is now settled, notwithstanding former decisions to the con- (a) Philpot v.
trary (a), that this clause does not extend to mutual promises to }X''7*'"'r
marry; consequently such promises are binding, although not ]^>eenj,2'4i.
reduced into writing and signed by the party. {b)\\ S, c. ('/>) Cork

V. Baker, 1 Stra. 24. Harrison v. Cage, Ld. Raym. 386.; and see loVcs.43«. Bull.
N. P. 280.

L 3 If

1^0 AGREEMENTS.

A5r.E(L 19. If a parol agreement is agreed to be reduced into writing, and

'''i^ S C^""* in part executed, but the reducing it into writing is prevented

Free. Ch. 526. ^y ^raud, it may be decreed in ecjuity ; as if upon a marriage

S.C. Stra.236. treaty instructions are given by the husband to draw a settle-

S. C. Gilb. ment, and by him privately countermanded, and afterwards he

S*c ^'bf*^' '^^"^^ *" ^^^^ woman by persuasions and assurances of such settle-

Ch. k. 565?" ment to marry him.

Abr. Eq. 20, So where the defendant on a treaty of marriage for his daughter

2 Vem. 373. with the plaintiff, signed a writing comprising the terms of the

:.' "P agreement, and afterwards designing to elude the force thereof^
mention matle o, i^ i- °*'i il-j \ ^ ^ I

of the fraud, ^"d get loose from his agreement, ordered riis daughter to put

only that the on a good humour and get the plaintiff to deliver up that writing,
father con- ^nd then marry him, which she accordingly did, and the de-
match *° ^ *^ fendant stood by at a corner of the street to see them go by to be

* married ; and the plaintiff was relieved on the point of fraud.

Fr em" 29 f ^" ^ ^^^^ exhibited for a marriage portion, the chief evidence

S .C. Where a ^^ support it was a letter proved to have been written by the
letter from the father's direction, where it was said he would give 1500/. por-
father, pro- tion with his daughter, and that he was afterwards privy to the
don"and''a '^" "^^^""iag^, and consented to it, and the portion was decreed the
'marriage had l>usband.

in pursuance thereof, has been held sufficient, vide 2 Vent. 361. 2Vern.200. sCh.R. 157.
Prec. in Chan. 561. Where an uncle in his letter promised his niece lOOO/. portion ; but in
the same letter dissuaded her from marrying the person ; Lord Chancellor would not decree
the payment, but left the party to his action at law. 2 Vern. 202. [A letter from a father to
his daughter that he will give her 3000/. not shewn to the husband, who afterwards accepts of
£000/. under a will, is no foundation for a decree. See a different state of this case in
9 Mod. 3. 2 P. Wms. 65. Nor is a letter promising a portion, but not reducing it to any cer-
tainty. Hall V. Butler, Eq. Ca. Abr. p. 7. Gilb. Lex. Prsetor. 243. For a letter cannot be
set up as an agreement unless the terms of the contract are distinctly set forth therein. Sea-
good V. Neale, 1 Stra. 426. Pr. Ch. 560. Clerk v. Wright, 1 Atk. 13.] j'See Luders v. Anstey,
4Ves. 501. 5Ves.216. The amount of consideration and the subject matter must appear.
Kennedy v. Lee, 5 Meriv. 44 1.|| [But a letter, (though not signed) referring to, and promising
to perform an agreement in w;hich the terms are set forth, is sufficient. Tawney v. Crowther,
3 Bro. Ch. R.318. ||And it is said parol evidence is admissible to shew what l^ras the thing
rclerrcd to. Clinan v. Cook, 1 Scho. & Lef. 53. ; and see Brodie v. St. Paul, ) Ves. jun. 326.
And a letter is binding, though the writer look to the execution of a more formal instrument.
I'owle V. treeman, 9 Ves. 351. Whether a note written in the third person offering to pur-
chase and accepted, is a sufficient agreement, qucsre Mofison v. Tumour, 18 Ves. 175. The
court will not decree a performance on letters, unless on a fair interpretation they import a
concluded agreement. Huddlestone v. Briscoe, 1 ] Ves. 59 1. Stratford v. Bosworth, 2 Ves. &
A ^'*^' iv/ 1 1 ^^^ ^°®*^ ^'* Conynghame, 1 1 Ves. 550. Selby v. Selby, 3 Meriv. 2. Boys v.
Aycrst, 6Madd.316. Randall v. Morgan, 12Ves.67.|| Qzi. Whether a court of equity will
decree an agreement entered into by letter, if a deed appear to have been afterwards framed
/ 1 %1k' executed), varying the terms expressed in the letter ? Cookes v. Mascal, 2 Vern. 35.
ur It the terms be varied by parol ? Jordan v. Sawkins, 5 Bro. Ch.R. 388. See 2 Ch. Ca. 180.
ruzgiD. 21 o. 2 balk. 444. ||Whether a settlement made after marriage, reciting a parol agree-

a^cement m wntmg may be discharged by parol, see 1 Vern. 240. 2 Ves. 376. A bond
orw,:i «,^ r woman to her intended husband, conditioned to settle an estate upon him in fee, is
f.^ ntl^.!;f *" ^ the agreement so specified in the condition on a bill in equity to carry it
Sn^7f a ' \°^ ''•^'^ ^""^ *' '^^- ^'«""el V. Buckle, 2 P. Wms. 242. it is a sufficient
3 Atk 50T P^''v"' « "?TJ'^''^""^'^"^''«"^scribe a deed as a witness only. Welfordv.Beazelv,
itmon« nf'.'Ko .f.r* •. i' "^- '^'^ *° t''^ signature, in order to comply with the requi-

nnd TeL k h,Tth ; V"T- ^^''^ '''*^ ^^''''' ^^ 8'^'"g authenticity to the whole instrument ;
ihcre a fj V r ^^ ^'^^'^ '^ IS immaterial in what part of the instrument it is found : bvM
HDcrc a iiarty had given written instructions to his agent for a lease, and had inserted his

(C; AgreetnenU within the Statute of Frauds. (4th Section.) 15 J

name in those inetructiona as applicable only to a particular purpose, the Court of Exchequer
held that this did not amount to a sufficient authentication. Stokes v. Martin, 1 P. Wms. 771.
note 1. It was formerly thought necessary that both parties should sign; but in the case of
Cotton V. Lee, before the Lords Commissioners, 1770, it was determined to be sufficient if the
party charged has signed. Cited in 2 Bro. Ch. R. 564. An agreement signed by one party
may, in some cases, be conclusive against both. Owen v. Davis, 1 Ves. 82. [[Seton v. Slade,
7 Ves. 265.|| [But, though the contract itself must be in writing, an authority to buy, or treat
Bs agent for another, may be good without writing. Vin. Abr. tit. Contract and Agreements (H),
p. 45. Wedderburne v. Carr, in the Exchequer, Tr.T. 1775. S Wooddes. 427.] ||Coles v.
frccothick, 9 Ves. 254. 250. Clinan v. Cooke, 1 Scho. & Lef. 22. Barry v. Barrymore, Ibid.
28. Emmerson v. Heelis, 2 Taunt. 38.||

But where on a marriage treaty the lady's father proposed to Abr. Eq. 21.
give 4500/. portion, and the husband v^^as to settle 4 or 500/. per Bawdes and
ann. for a jointure; the father and intended husband went to Amhnrst. [Pr.
Mr. Minshid's chambers, who hearing the proposals on both ^'^- \^?'^' S'
sides took down minutes or heads thereof in writing, and the ^j^/te's ob-
same day gave them to his clerk to draw a settlement according servations up
to the terms of the agreement ; the next day the father fell sick on this case,
suddenly, and died in two hours after, and the next morning the 1, j ^^p^f
marriage was consummated; and on a bill brought to have a v. Trecothick^
specific performance of the agreement, my Lord Chancellor de- 9 Ves. 254.
creed it to be within the statute oi frauds, and said he knew no Griffin v. Grif-
case where an agreement, though written by the party himself, fi"»6Ves.i79.n.
should bind, if not signed or in part executed by him [a) ; and ^ Harrop
that those preparatory heads might have received several alter- 7 Ves. 541.
ations or additions, or the agreement might have entirely broke Selby y. Selby,
off upon some further enquiry of the party's circumstances ; and '^ ^^^^•■'v- 2.II
this decree was thought very just by the bar, who all agreed si<Tned and
with my Lord Chancellor, that if the marriage had been on the given by ahus-
foot of this writing, and the father had been privy and consent- band to his

ing to it, that he should afterwards have been oblig-ed to execute ^^^'l previously
1 .° ^' , f. =" to their mar-

his part thereof. riage, promis-

ing to rectify a mistake in the settlement, in consideration of which she was induced to execute
it, was holden to be part of the settlement, and binding on the husband and his assignees,
Tyrrell v. Hope, 2 Atk. 558.]

On the marriage of the plaintiff with the defendant's daughter, 25 Jan. 1724.
the defendant promised to give her 450/. portion, and accordingly 9" ^''^^ ^"'^
paid the plaintiff 200/. in part, but took a bond from him for it adjudged'
till a suitable settlement should be made, and the defendant him- between San-
self gave particular directions concerning the settlement, which sum and
was drawn accordingly and engrossed; but before it was executed Butter,
thp plaintiff's wife died, and the bill was brought to have the
200/. bond delivered up, and the remaining 250/. paid ; the de-
fendant pleaded the statute o^ frauds and perjuries, the agree-
ment not being reduced into writing and signed by the parties ;
and by way of answer denied that the 200/. was paid in part of
the portion, but said it was lent the plaintiff, and the bond given
for it ; and the plea was allowed ; for if the marriage should be
looked upon as an execution of the agreement on the one side,
so as to take it out of the statute, it would entirely evade it; for
all promises of this kind suppose a marriage either already had
or to be had.

L 4 114. Of

16^

AGREEMENTS.

Attorney-
General V.
Day, 1 Ve«.

SI 8. ||01ng(len
▼. Uradbcar,
12 Vcs. 466.11

Ves. 931.

IbkL

Cox ▼. Peclo,
2 Bro. Ch. R.
S34.

n*. OfContracts for Saleof Lands,Tenements,andHereditaraents.||

[A judicial sale of an estate under a decree of the Court of
Chancery is not within the statute. Thus A. being likely to die,
made a conveyance of a real estate in favour of a charity, and
then made a will, by which he gave 3000/. (the exact value of
that land,) and also 250/. to the same charity, and gave the
estate to D. (wife of B.) and C. A bill was brought for an ac-
count, and for the direction of the court for a settlement of the
estate under the will ; and a decree was had thereupon, and the
master was thereby directed to receive a scheme for carrying the
conveyance into execution ; the foundation of part of which was
to consider, in what way the money should be laid out, and a
perpetual fund created for the maintenance of the charity. The
master reported a scheme for laying out the money in the pur-
chase of lands ; and the case being set down to be heard on the
matter reserved, the court made a decretal order confirming the
master's report, and ordering that the scheme should be approved
of, and the other matters therein carried into execution. These
directions were all acquiesced under by B. and D. who survived
him. After her (Z).*s) death, an information was brought on
behalf of the charity, together with the administratrix of D. to
have this purchase carried into execution by the aid of the court
against the devisee of the heir at law of Z). and the infant son of
C. the co-devisee with Z). And it being objected that there was
no agreement signed pursuant to the statute of frauds, one ques-
tion was, whether the transactions which passed in the life-times
of Z). and C. amounted to a binding agreement on them for the
Bale of the lands ? And Lord Hardwicke held, that here was
such an agreement as the court ought to execute notwithstanding
the statute ; this being a judicial sale of the estate. And upon
the same principle it is holden that purchasers before the masters
are out of the statute, and the court will in such cases carry into
execution against the ropresentative, a purchase by a bidder be-
fore the master, without the bidder's subscribing, after confirm-
ation of the master's report that he was the best bidder : the
judgment of the court taking it out of the statute. So if the au-
thority of an agent who subscribed for a bidder before the master
cannot be proved, yet if the master's report can be confirmed,
the court will carry it into execution, miless there be some fraud.
And Lord TJiurl&w was of opinion, where the attornies, con-
cerned in a suit by a first mortgagee for a foreclosure, agreed,
with respect to the final decree, that the estate should be sold,
the first mortgagee paid principal and interest, and the remainder
paid to the second mortgagee, but that the former should in the
mean time take a decree ; that if the first mortgagee made an
improper use of the decree, this agreement, though by parol,
might be read, on an applicatian to open the foreclosure, as an
agreement relative to a decree ; the attornies being competent to
make agreements relative to the orders of the court. And upon

that

that ground he admitted the evidence of it de bene esse, though
it had been rejected at the Rolls, because it was not in writing,
and therefore void under the statute.]

If there be a parol agreement for the purchase of lands, and ^^'^' ^q- 19.
a bill brought for a specific execution thereof, and the substance Eq^R 55
of the agreement is set forth in the bill, and confessed by the s. C. Gilb. Ch.
defendant's answer, the court will decree a specific execution, 257. S, C.
because there is no danger of peijury, which was the principal ^^' ^' ^^^\
thing the statute intended to prevent. ^^^ ^ Tweed '

Pr. Ch. 374. Lacon v. Martins, 5 Atk. 3. Attorney-General v. Day, 1 Ves. 221. S. P. Gunter
V. Halsey, Ambl. 586. Potter v. Potter, 1 Ves. 441. [See Eyre v. Ivison, Scac. Tr. 1 785. cited
2 Bro. Ch.R. 563. Stewart v. Careless, Scac. April 1785, cited Ibid. 564., and Rondeau v.
Wyatt, 2 H. Black. R. 68.] jjBut according to the modern doctrine, if the defendant insist on
the statute, a specific performance will not be enforced, though the agreement is confessed j
for as the defendant cannot protect himself from answering whether there was an agreement
or not, it would be unjust to take the case out of the statute on the ground of his admission.
Cooth V. Jackson, 6 Ves. 39. Rowe v. Teed, 15 Ves. 375. Blagden v. Bradbear, 12 Ves. 471.
Walters v. Morgan, 2 Cox's R. 369. As to whether an agreement confessed will be enforced
if the party do not insist on the statute, see Ex parte Whitbread, 19 Ves. 211. 1 Fonb, on Eq.
180. note (d).ll [If the party himself die, his heir will, it seems, be bound on a bill of revivor.
P^r Lord Hardwicke, 1 Ves. 221. And upon this principle, equity will decree an agreement on
evidence of its having been confessed by a party to it, although it be denied by his answer.
As where an agreement was proved by one witness only, and positively denied by the defend-
ant's answer; but there was proof in the cause that the defendant had confessed the agree-
ment : the Master of the Rolls offered to direct an issue to try the agreement if the defendant
desired it ; but he declined that, unless his honour would make an order that his answer should
be read at the trial, which his honour refused, there being circumstances to corroborate the
evidence of the single v/itness, and decreed the agreement to be carried into execution.
Only V. Walker, 3 Atk. 407- Where the two defendants in a suit confessed an agreement in
their answer, but different from that stated in the bill, and an agreement different from either
was proved by the testimony of only a single witness. Lord Loughborough C decreed a per-
formance pursuant to the terms of the agreement confessed by the answer. Mortimer v.
Orchard, 2 Ves. jun. 243.] ||If the party to an agreement is dead, so that his answer cannot
be had, evidence of his parol confession of the agreement in his lifetime is inadmissible.
Perchard v. Benyon, 1 Cox's R. 214.1| [In what manner, and in what cases the statute may
be pleaded to a bill for the performance of a parol agreement, vide in Whitbread v. Brock-
hurst, 1 Bro. Ch. R. 404. Whitchurch v. Bevis, 2 Bro. Ch.R. 5^9., and the cases there men-
tioned. See also Mitf. Eq. Tr. 217. (3d edit.) Taylor v. Beach, 1 Ves. 297.] pvans v.
Harris, 2 Ves. & B. 361. Morison v. Tumour, 18 Ves. 175. Strickland v. Aldridge,
9 Ves. 516.||

[The plaintiff agreed with the defendant to sell him a house Hawkins v.
for 640/. and by consent of both parties an attorney was employed holmes, i P.
to make a draft of the conveyance : which the attorney accord- '"^' *
ingly prepared and sent to the defendant, who made several
alterations therein with his own hand, and delivered it back to
the attorney to be engrossed; upon which a time was appointed
for the plaintiff and defendant to meet at a tavern to execute the
writings, and for the latter to pay the money. The plaintiff and
his attorney came to the tavern, where the plaintiff executed the
writings, and having gotten the conveyance registered, (the house
being in Middlesex,) brought his bill against the defendant to
compel him to pay the purchase-money. The defendant pleaded
the statute ofjrauds; and it was holden he was not bound, he
not having signed the agreement.

A. agreed by parol with B. for the purchase of lands. B. de- Whaley y.
livered a rent-toll which was dated and altered in his own hand- Bagenal,
writing, and shewed by the title of it that an agreement had been J^^fo-P-^-

made

154 AGREEMENTS.

made between them for the sale of the estate at twenty-one years'
I)urchase. An abstract of the title was also delivered to A. to-
gether with the deeds, in order to be compared with the rent-roll,
B. likewise wrote letters to several of his creditors, informing
them that he had contracted with A. for the sale of his estate at
twenty-one years' purchase, and sent the tenants to treat with A.
for the renewal of their leases. Notwithstanding all these cir-
cumstances, upon A.'s filing a bill for a specific performance, the
plea of the statute ofjrauds was allowed by the House of Lords
both as to the discovery and relief.
2 Bro. Cb. R. If there be general instructions for an agreement consisting of
^^' material circumstances, to be hereafter extended more at large,

and to be put into the form of an instrument with a view to be
signed by the parties, and no fraud, but the party takes advan-
tage of the loais pcenitenticE, he shall not be compelled to perform
such an agreement as that, when he insists upon the statute of
frauds. Per Lord Thurlonso.']
O'Connor V. H-^" agreement for an abatement of rent of land is within the

Spaight, statute, and must be in writing.

1 Scho. & Lcf. 306.

Crosby v. So also a contract for the purchase of a growing crop of grass,

Wadswortb, ^^ |jg mown and made into hay by the vendee, but no time
set! vkle 1 Lord heing fixed for the mowing, is a contract for an interest in land
Raym. 182. within the statute, and is voidable if not in writing, and may be
discharged by a parol notice from the vendor, before any act is
done in part execution of it.
Scorell V. go also the sale of growing underwood, to be cut by the pur-

1 Y & chaser, has been held to convey an interest in land under the
J. 396. fourth section.

Teal V. Auty "^^ ^^^^ ^^ ^^ ^ '^^^^ of growing poles.

2 Brod. & B. 99.; sed vide 9 Barn. & C. 561.

Eramerson v ^ ^^^° ^ ^^^^ °^ growing turnips, no time being fixed for their

Heelis,2Taunt. removal, and their degree of maturity not being stated.
S8. ; and see Waddington v. Bristow, 3 Bos. & P. 452.

Parker v. But where the contract was for a crop of potatoes, to be taken

ii^E^r'sel ^^ ^^^ vendee immediately out of the ground, it was considered
Warwick v. * ^ ^ sale of personal chattels, and not within the fourth section.
Bruce, 2 Maule & S- 205, ; and see Poulter v. Killingbeck, 1 Bos. & P. 397. ; and Evans v.
Roberts, 5 Barn. &C. 836. which seems to over-rule Emraerson v. Heelis; and see Smith v.
Surman, 9 Barn. & C. 561., where a contract for sale of growing timber, at so much per foot,
was held not within the fourth, but within the seventeenth section.

Broc^kiYl ^ licence to enjoy an easement is good without writing, this

8Eajt7308. "°' ^^'"S ^^ interest in land within the statute.

Russell V. ^ deposit of title-deeds, by way of security, is held to consti-

Russell, taX-j an equitable mortgage, though unaccompanied by any

1 Bro. C. R. writing. This decision has been much regretted as letting in

uXh^uYes ^^^°^ evidence as to the terms of the deposit, and leading to

403: Norris*^v! ^^i^cussion on the truth and probability of evidence, which it was

Wilkinson, ^^^^ object of the statute to exclude. But the doctrine is now

i2Ves. 197.; settled.

and see tit. Mortgage, (A). Vol. V.

It has been repeatedly decided (a), that, on a sale of goods by {a) Simon v.
auction, the auctioneer is the agent of both parties, and able to Motives,
bind both within the statute by his signature. j 'Qlack 599 *

Hinde v. Whitehouse, 7 East, 558.; and see 2 Barn. & C. 945.

But the contrary has been decided (b) as to sales by auction of {b) Walker v.
estates in land, though the principle of the distinction is not Constable,
evident; audit has been questioned by several judges. see. Stansfield

V.Johnson, 1 Espin. Ca. 101. Buckmaster v. Harrop, 7 Ves. 341. isVes. 456. Coles
V. Trecothick, 9 Ves. 234.

And in two late cases the Court of Common Pleas held the t-.

p , , 1 p 1 1 Emmerson v.

auctioneer an agent lor the purchaser on a sale or land. Heelis

2 Taunt. 58. White v. Proctor, 4 Taunt. 209.
The latter case was an action against the vendee for the Kemeys v.
auction-duty on the sale, and the vendor afterwards filing a bill Proctor,
for a specific performance of the contract, the Master of the f j **& w"^^*
Rolls, on the authority of the cases in the Common Pleas, held 550.
the auctioneer's signature sufficient to bind the vendee, and de-
creed accordingly. The rule appears, therefore, now to be
settled, that the auctioneer is the lawful agent of both parties on
a sale of land, as well as of goods.

5. Of Agreements not to be performed within the Space of one
Year from the making thereof.

This clause extends only to cases where, by express agree-
ment of the parties, the contract is not to be performed within
one year, and not to agreements depending on a contingency
which may happen either within or beyond the year.

Therefore an agreement to pay the plaintiff so many guineas Anon. Salk
on the day of his marriage, was held not within the statute,
although the marriage did not take effect for nine years ; for it
might have happened within the year, Holt C J., and the
minority of the judges holding contra, on the ground of the
marriage actually happening after the year.

So an agreement to bequeath to the plaintiff an annuity, pay-
able yearly, from the testator's death, was held not within the biers, Execu
statute, in an action brought against the executor, for the testa- to""* ^ Burr,
tor might have bequeathed the annuity by will within the year. r^5%\ and

see Smith v. Westall, Ld. Raym. 316

But where the plaintiffs agreed to publish an expensive work Boydell v.
of art in numbers, one number at least to be published annually, Drummond,
and stated, they were confident they should be enabled to pro- ^ ^^^*' ^1^*
duce two numbers in the course of every year, and the defendant jj^g subscriber
became a subscriber, and the first number was delivered to him in such case
within a year from the date of his subscription, it was held that is not bound,
the case was within the statute, as it appeared to be the clear w^^^^out writ-
understanding of the parties, that the agreement was not to be jj^ue to take
completed within the year ; and the part performance within the in the num-
year, by the delivery of the first numbei*, made no difference, bers, he is
since the word " performed," in the statute, means a complete f""?^ ^"JJ^^
performance or consummation of the work. has accepted.

Mavor v, Pyne, 3 Bing. 285
And

280., recog-
nised by
Wilmut J. in
5 Burr. 1281.;
and see Wells
V. Horton,
4 Bing. 43.

Fenton v. Em-

156

AGREEMENTS.

Braccgirdlev
HeaM, l Barn.
Hi A. 722. See
Williams v.
Jones, 5 Unra.
& C. 108.

Birch V. Earl
Liverpool,
9 Bam. & C.
993.

J 17.

Alexander v.
Comber, 1 H.
Black. R. 20.
Towers V. Os-
borne, I Stra.
596. Clayton
V. Andrews,

4 Burr. 2101.
(o) Rondeau
V. Wyatt,

5 il. Black.
R.63. sBro.
Ch.R. 154.
S.C.

Cooper V.

Elston,

7 Term R. 14.

Garbut v.
Watson,
5 Bam. & A.
614.

Groves v.
Buck, S Maule
&S.178.

Smith T.Sur.

And accordingly, where the defendant verbally agreed, on the
27 JMizy, to take the plaintiiF into his service for a year from the
30th Jwie following, it was decided, that this being a contract
which would not be completely performed within the year, was
within the statute, and void for want of writing.

A contract to hire a carriage for five years, paying an annual
sum for it, and determinable at any time on paying a year's hire,
is a contract not to be performed within a year, and requires
writing.

As to the seventh section, respecting declarations of trust,
which was improperly inserted here in former editions, see tit.
« Trusts," (B) (C) Vol. VIII.||

II 3. Of Agreements mentioned in the Seventeenth Section.\\

By § 17. it is enacted, ** That no contract for the sale of any
*' goods, wares, and merchandize for the price of ten pounds
*' sterling, or upwards, shall be allowed to be good, except the
*' buyer shall accept of p'hrt of thegoods so sold, and actually
*' receive the same, or give something in earnest to bind the
" bargain, or in part of payment ; or that some note or memo-
** randum in writing of the said bargain be made and signed by
** the parties to be charged, or their agents thereunto lawfully
** authorized."

II 1. What Agreements are within the Seventeenth Section, jj

6. As to the clause respecting sales, it has been formerly
thought, that it means only present and immediate sales, and
does not include executory contracts, where goods are bespoken,
and time is given by special agreement for the delivery of them,
and payment of their value. But this construction has been de-
nied in a recent determination of the Court of Common Pleas,
Wilson J. dissent, (a), where an executory contract, merely a
contract of sale, even though confessed by the defendant in his
answer in Chancery, was determined to be within this provision.
To this opinion, it may be added. Lord Thurlow intimated an
incUnation, when the case was before him in Chancery.

IJThe case of iJowrf^aM v. Wyatt has been confirmed by sub-
sequent cases. In one case a sale of wheat by sample, to be de-
livered by the defendant at a different place from the place of
sale, was held to be within the clause of the statute, and the
receipt of the sample by the buyer was held not a sufficient
acceptance, the sample being no part of the wheat sold.

So also a contract for sale of flour not yet ground was held
within the statute ; and was distinguished from the case of Torwers
V. Osborne, supra, since there the chariot ordered would never,
but for the order, have had existence, whereas the flour was sold,
as part of the vendor's general stock.

A contract for a quantity of oak pins to be cut out of slabs
and delivered to the buyer, was held not a sale of goods within
the statute.

But where A., being the owner of trees growing, agreed ver-
bally

bally with D. to Bell him the timber at bo much per foot, it was «"»". ^ \hin.

held an agreement for sale of goods within the section. ^ V* '^^-Vr' .

*= ^ and see Watts

V. Friend, 10 Barn. & C. 446. The case of Groves v. Buck is over-ruled by Garbut v.

Watson, sujmi; see 9 Barn. & C. 561.

But the sale of growing underwood to be cut by the purchaser Scorell v.
has, as we have seen, been held by the Court of Exchequer to |^^^'l>
confer an interest in land within the fourth section. 39g . ^,jj ^^^'

2 Brod! & B. 99.

The circumstance of a buyer agreeing to pay a higher price Astey v.
for goods in consideration of their being delivered at the vendor's ^j^^'^^j' o c
expense, does not make the contract a mixed contract for the 252.
carriage as well as the sale, so as to prevent its coming within
the seventeenth section as a sale of goods.

A contract for the purchase of several articles at the same time, Baldej v.
each under 10/. and at separate prices, but in the whole amount- ^^n'^^'^' <> p
ing to above 10/. is within the seventeenth section. ^^ ^■^^nd see

Price v Lea, 1 Barn. & C. 156.

A contract to procure coals for plaintiff at A., and convey Cobbold v.

them to i?., is not a contract for sale of coals to the plaintiff Gaston, 1 Bing.

• 1-1 R 399

witlim the statute.

2. Of Acceptance of Goods, and part Payment, within the
Seventeenth Section.

Where goods are ponderous, and incapable of being at once chaplin v.
handed over by actual delivery, the statute may be satisfied by Rogers,
that which is tantamount, as the delivery of the key of the ware- ^ East, 192.;
house where they are, or other zw<//cmwofproperty, or the exercising ^ ^^ ''P'"'
acts of ownership over them, as selling a part to another person.

And the offering to sell them by the buyer to a third party, Blenkinsop v.
who refuses to purchase them, is such an act as ought to be left Clayton,
to a jury, to say whether it amounts to an acceptance or not. ' i^ itf/'

S. C. ' "^

Where wine lying in the London Docks was sold without any Bentall v.
written contract, and an order of delivery was given by the ^"^' ^ ^*™*
vendor to the vendee, it was held that the acceptance of this
order by the buyer was not an acceptance of the goods within
the statute, since, till the Dock Company. accepted the order,
they continued to hold the wine for the vendor.

The acceptance of a sample of the goods, if part of the bulk Hinde v.
sold, is a sufficient acceptance within the statute, but not if the Whitchouse,'

sample form no part of the commodity. 7 bast, 558.;

^ ^ •' Cooper V.

Elston, 7 Term R. 14.

Where the defendant contracted to purchase two horses of the Elmore v.
plaintiff, and desired the plaintiff, who was a livery-stable keeper, Stone,
to keep them at livery for the defendant, in consequence of which 1 Taunt. 458.
the plaintiff removed them out of his sale stable into another, it
was held that this was a complete delivery to the defendant.

But where the defendant verbally bought a horse of plaintiff, to Carter y.
remain for twenty days with the plaintiff without any charge, and Toussaint,
no time was fixed for payment of the price, and at the end of the 855!^" '

twenty

158

AGREEMENTS.

Howe V.

Palmer,
3 Barn. & Aid
321.; see
2 Carr. & P
532.

Rohde V.

Thwaites,
C Barn. & C.
388.

Tempest v.
Fitzgerald,
3 Bam. & A.
680. See
Tarling v.
Baxter,
6 Barn. & C.
500.

Hanson v.
Armitage,
5 Barn. & A.
£37. ; ted vide
Hart V.
Sattley,
3 Camp. 523.
Baldey v.
Parker,
2 Bam- & C.
44. ; and see
Thompson v.

Phillips V.

Bistolli,

2 Bara. & C.

SU.

twenty days the defendant ordered the horse to be sent to grass,
but entered as the plaintifs huise, it was held that an action
would not lie for the price, suice there was no sufficient accept-
ance by the defendant.

So where a quantity of tares were purchased by the defend-
ant of the plaintiff, and they were to remain in the plaintiff's
' possession till the defendant fetched them away, the mere cir-
cumstance of the plaintiff's servant measuring them out and
setting them apart in the plaintiff's granary for the defendant, was
held not a sufficient delivery and acceptance within the statute.

But where A. agreed to sell to B. twenty hogsheads of sugar
without any writing, and four hogsheads were delivered to and
accepted by J3., and A. filled up and appropriated sixteen other
hogsheads, and informed B, they were ready, and desired him
to fetch them away, and B. said he would take them as soon as
he could, it was held that the appropriation having been made
by A. and assented to by J5., the property in the sixteen hogs-
heads passed to the latter.

So where the defendant, while on a visit to plaintiff, agreed to
purchase a horse for ready money, and to fetch it away about
the 22d of Septembery and the defendant went away, and re-
turned on the 20th of September, and then rode the horse, and
gave directions as to its treatment, and requested it might remain
another week in plaintiff's possession, and said he would return
and pay for it about the 26th or 27th of September, and the
defendant returned on the 27th to take the horse away, but
in the mean time it had died, and the defendant refused to
pay the price ; it was held that there was no acceptance of the
horse within the statute of frauds, for the sale being for ready
money, the defendant had no right to take away the horse till
tlie price was paid, and therefore his acts on the 20th September
could not be considered as acts of ownership.

An acceptance of the goods by a wharfinger, in order to con-
vey them to the buyer, is not an acceptance by the buyer within
the statute ; for the acceptance must be such as precludes the
buyer from afterwards making any objection to the quantum or
quality of the goods.

As long as the lien of the vendor remams, the possession of
the goods is not so transferred to the vendee as to amount to
an acceptance of them within the statute.
Maceroni, 3 Bara. & C. 1. Mayfield v. Wadsley, Ibid. 557.

In order to satisfy the statute, there must be a delivery of the
goods by the vendor with an intention of vesting the possession
in the vendee, and an actual acceptance by the latter with in-
tention of taking the possession as owner. Therefore, where
jewels were knocked down by the plaintiff to the defendant at an
auction, at which the conditions were, that the purchaser should
pay thirty per cent, upon being declared the highest bidder, and
the residue of the price on removal of the goods, and the de-
fendant received the jewels on their being knocked down, and

three

three or four minutes afterwards objected that he had mistaken
the price, when the plaintiff refused to receive them again, it was
held, that as it could not be presumed that the vendor intended,
contrary to the conditions, to part with the goods without the
deposit or price being paid, there was very slight evidence to
shew that the plaintiff intended to part with the control over the
goods when he delivered them, and that the receiving the jewels
for a few minutes before making his objection was very slight
evidence of an acceptance by the vendee, and that it was a
question for the jury whether there was a delivery and accept-
ance intended by both parties to transfer the possession.

If the purchaser of goods draw a shilling over the hand of the Blenkinsop v.
vendor, and return the money into his own pocket, which is Clayton,
called in the north of England striking of a bargain, this is not '^ Taunt. 597.
a part payment within the statute.

3. Of the Memorandum in Writing, and the signing by the
Party to be charged, or his Agent

The language of the seventeenth section differs from that of Egerton v.
the fourth, inasmuch as in the latter the " agreemenf*^ is required Matthews,;
to be in writing, in the former, only a " note or memorandum in ^ ^^'' ^^ '^
writing of the bargain " is required. Therefore, where an action
was brought for not accepting goods according to the following
memorandum — "We agree to give Mr. Egerton \^d. per lb. for
30 bales of Smyrna cotton, customary allowance, cash 3 per cent.
Matthe*iSos and Turnbidl" it was objected that no consideration
appeared for the defendant's undertaking, and that there was no
mutuality in the agreement ; but the Court distinguished this
from the cases on the fourth section, and held that there was a
sufficient memorandum of the bargain to bind the parties to be
charged and that their signatures were all that the statute re-
quired.

In the above case the name of the seller appeared in the me- champion v.
morandum, although the purchasers only signed it. But where Phimmer,
the seller alone siimed a memorandum of the bargain, and the i New R. 252^
buyer's name did not appear on it, it was held insufficient ; since *^" J'*"^ ^"^"
there cannot be a contract without two parties, and the memo- 5 Xaunt. 167.
randum would prove a sale to any other party as well as to the
buyer.

The memorandum may be made up of two separate writ- Saunderson v.
ings, if they refer one to the other. Thus, in an action for Jackson,
not delivering gin bought of the defendants, it appeared that 2 Bos. & PulT,
at the time the order was given by the plaintiff a bill of ^^^*
parcels was delivered to him by the defendants, headed in print
thus: " Bought of Jacit^on 2iX\d. Hawkins, distillers;" and then ,

followed, in writing, " 1000 gallons of gin, 1 in 5 gin, 7^., 350/.;"
and the name of the buyer appeared on the bill of parcels.
About a month after, the defendants also wrote the following
letter to the plaintiff: — " Sir, we wish to know what time we
" shall send your order, and shall be obliged for a little time in
" delivering of the remainder. Must request you to return our
" pipes. Yours, &c Jcckson and Hawkins.^^ It was holden

that

160

AGREEMENTS.

Jackson v.
Lowe, 1 Bing.
R.9.

Cooper V.
Smith, 15 East
103.; and see
Boydell V.
Drummond,
II East, 142.
Richards v.
Porter, 6 Barn.
& C. 437.

1 Espin. 190.
perEi/reC.J.;
see Selby v.
Sclby,3Meriv.

k.2.

Saunderson v.

Jackson,

S Bos. & Pull.

238.

Schneider v.

^lorris,

12 Maule & S.

S86.

Smon T. Me-
tivier, 1 Black.
B.5d9.

that by connecting the bill of parcels with the subsequent letter
of the defendants, the requisites of the statute were made out.

So, in an action for not delivering flour according to con-
tract, it appeared that the plaintiff had sent a written notice
to the defendant that certain flour delivered by the defendant to
the plaintiff (" in part performance of the plaintiffs contract
" with him for 100 sacks or bags of good English seconds
" flour, at 45s. per sack or bag,") was so bad that the plaintiff
would not accept it, and that he held the defendant answerable,
and expected him to fulfil the contract above alluded to in the
course of a week; and the defendant's attorney's clerk, by
direction of the defendant returned an answer, stating that de-
fendant considered he had performed his contract with the
plaintiff as far as it had gone, and w^as ready to perform the
remainder; it was held, that as the plaintifTs notice stated the
terms of the contract, and the defendant's letter clearly referred
to the same contract, the two papers together made a sufficient
memorandum within the statute.

But where in an action for goods sold and delivered, the
plaintiff offered in evidence an entry of the order for the goods,
made in an order-book of the plaintifTs rider, which purported
to be a mere general order of forty sacks of flour at 58s. per
sack, and this order being insufficient as a memorandum for
want of signature, the plaintiff endeavoured to satisfy the statute
by connecting the order with a letter of the defendant, stating,
that as the plaintiff had not sent the flour, the defendant was
provided, and that he had expected to receive it in a vceek, it was
held, that the letter of the defendant appeared to refer to a dif-
ferent contract, and could not be connected with the order, so as
to form a memorandum within the statute.

The place of signature of the memorandum is immaterial. If
a person draw up an agreement in his own hand-writing, be-
ginning, " I A. B. agree, 8^c" and leave a place for signature at
the bottom, but does not sign it, the agreement will be con-
sidered as sufficiently signed.

So it seems if a person be in the habit of printing instead of
writing his name, he may be said to sign by his printed as well
as by his written name.

And where the name of the seller was printed in the common
way on the bill of parcels, and he had written in the bill the
name of the buyer, that was held to be a recognition of the
contract and adoption of the printed name, so as to satisfy the
statute.

Tlie question whether sales of goods by auction were within
the seventeenth section was long without a solemn determi-
nation. In one case Lord Mansfield C. J. and Wilmot J. were
inclined to the negative, on the* ground that the solemnity
of that kind of sale, and the number of persons present, pre-
cluded perjury as to the. fact of sale. But Lord Ellenhorough,
in Hinde v. Wliitehouse, 7 East, 568., observed, that with all
deference to these opinions he did not feel any sufficient reason
for dispensing with the express requisition of the statute apply-
ing

ing to all sales of goods above the value of 10/. without exception, Kenworthy v.

merely because the quantum of parol evidence in case of an Schofield,

auction is likely to render the danger of perjury less consider- L/"^"'
able ; and in a late case the Court of King's Bench {Abbott C. J.
and Littledale J. being absent,) expressly decided that such
sales are within the seventeenth section. We have already
seen (p. 155), that the auctioneer is the agent of both parties,
and a memorandum made by him of the bargain binds both
the seller and buyer.

But the terms of the contract must sufficiently appear on the Hinde v.

Face of the memorandum, signed by the auctioneer. Therefore, Whitehouse,

where at a sale by auction of sugars, the auctioneer (having Kenwo'rthvV

before him the printed catalogue of sale, containing the lots, Schofield,

marks, and number of hogsheads, and the gross weight of the 2 Barn. & C.

sugars, and also another paper containing the conditions of sale, pf^"?' i ^"* ^^^

which latter he read to the bidders as the terms on which the Barry"i°Camp

sugars were sold, but the two papers were neither externally 513. 'The

annexed nor contained any internal reference to each other,) note in writing

wrote down on the catalogue the name of the highest bidder, "^"^^ ^t'^^^ the

and the sum bid for each lot, it was holden that the minute on goodsln oi^er

the catalogue (the catalogue not being incorporated with the to satisfy the

conditions of sale) was not a sufficient memorandum of a bargain statute.

under those conditions. ^ ^*'^* ^ %•

545.

If the action is brought in the auctioneer's own name for not Farebrother

accepting goods knocked down at an auction, the statute will not v. Simmons,

be satisfied by the signature of the auctioneer as agent for the ^ Barn. & A.

buyer ; for the agent signing must be a third party, and not the ''"'t "■ 'r^y"^'^
^u ^ .. .1- X '^ . xu J V. Lmthorne,

Other party to the contract on the record. 1 \^y & Moo.

325. Wright V. Dannah, 2 Camp. R. 203.; and see 1 Moo. & Malk. 125.

In sales made by brokers acting between tlie parties buying Kucker v.

and selling, the memorandum in the broker's book, and the Cammeycr,

bought and sold notes transcribed therefrom, and signed by the Hinde v.*

broker, and delivered to the buyer and seller respectively, are Whitehouse,

held a sufficient compliance with the statute to render the con- 7 East, 569.

tract binding on each party. f'^f ^°^^,^^

'^ ^ •' lenborough.

It was laid down by Lord Ellenboroiigh C. J., that the entry j-je„^ ^
signed by the broker is alone the binding contract, and that the Neale,2Ca'mp.
bought and sold notes transcribed from it are only sent to the 357. Gumming
parties for their information. But in another case, where the T: Roebuck,
bought and sold notes diffi=red in terms, Gibbs C.J. denied this Thornton \^*
doctrine, and held that the parties were bound by the notes Kempster,
delivered by the broker, and if they differed there was no valid 5 Taunt, vsg.
contract ; and the Courts of Common Pleas and King's Bench ^"^ ,^^^ f^^^^
in similar cases decided accordingly. 5 B.lrn &'^C

436. In Gumming v. Roebuck, and Thornton v. Kempster, it did not appear whether there
was any entry signed by the broker in his book. Qu. whether such an entry signed will make
a binding contract where the bought and sold notes differ? It is clear an unsigned entry will
not. Grant v. Fletcher, supra.

So, if a material alteration is made in the note by the broker Powell v. Di-
at the instance of one party, without the assent of the other, )^^"' 1 5 East,
it annuls the instrument. ''^^'

Vol. I. M In

16« AGREEMENTS.

Dickenson ?. In a late Nisi Prius case, the question arose whether the bought
Lilwall, and sold notes alone would constitute a contract, without any entry

1 Surk, 128. Q^ all j„ ti,g broker's book ; but it was not necessary to decide it.
Goomv. But it has lately been held, that where the broker makes an

Aflalo, 6 Bam. entry in his book but does not sign it, and sends bought and
* ^"c *•';, ^'^ sold notes, copied from the book and signed by him, to the parties,
Sparrow, 2C. ^hey form a sufficient memorandum.||

& P. 544. If the broker's clerk sign the book it will not be sufficient; for the broker cannot
delegate his authority. Henderson v. Barnwall, 1 Young & J. 587 ; see Blore v. Sutton,
3 Meriv. 237. Though the agent signing the contract has no authority from his principal at
the time of signing, it will be sufficient if the principal afterwards ratifies the contract.
Maclean v. Dunn, 4 Bing. 722.

(D) Of Cases where Equity decrees specific Perform-
ance of Agreements on the Ground of their
being in Part performed.

There are several cases in which it has been holden, that a
parol agreement in part executed shall be performed in the whole ;
but as those cases are not exactly stated or well reported, it will
be sufficient to mention what seems to be the sense of them, and
what with any justness can be collected from them. If an agree-
Leek v. Mor- nient be made concerning lands, though not in writing, and the
rice, 2 Ch. Ca. party by whom it was made receive all or part of the money,
135. Alsop V. equity will compel a specific performance of the whole agree-
i^atten, 1 Vern. jjjgjjj-. because this is out of the statute, which designed to defeat
H. C. 239. such agreements only, no part whereof was carried into exe-
cution, and set up merely by parol ; for that was the occasion of
the statute, that persons used to swear verbal agreements upon
others, and by such false oaths charge the parties in equity to
perform such agreements, though they had never been made ; and
therefore the mere parol proof of such agreements concerning
lands cannot be admitted in a court of equity : but where the
Bamett v. price is paid, there it doth not stand upon the parol proof of the
Gomeserra, agreement only, but upon the execution of part of the agreement,
sled V. Cole- ' ^^^'<^'' is evidence that the agreement was really made ; and diere-
man,Bunb.65. fore there is the same reason that the plaintiff in equity should
[{a) In Lacon have the land for his money (a), as it is that he should deliver the
3 Atk"4°*'Ld S^ods where he hath received the money ; but the doubt in these
Hardwicke ' ^^ses is, what shall be a proof of the receipt of the money,
said, that pay- Thus far it seems certain, that if the defendant in his answer
mcnt had al- confess the receipt of the money for that purpose in the bill, or if
holden*^a")art ^^ ^^"^ ^^® receipt, and it be proved upon him by writing, as

Krformance. ^y letter under his hand, or other written evidence, he shall be
It it seems obliged specifically to perform the whole agreement, because he
that it is not hath carried part into execution : but if the defendant confess the
S lands! *St ^^^p'P.^ of the money, but say that he borrowed it from the
eooile v! plaintiff, and that he had it not in execution of that agreement,

Mealc, Pr.Ch. there he turns the proof of the agreement upon the plaintiff,
560. Lord and then the plaintiff must prove the receipt of the money by
R^2En ^^^ defendant, for the purpose in the bill, by some written
Ca. Abr. 46. agreement. (6)

pi 12. Simmons V. Cornelius, 1 Ch. Rep. 128. But sec VoU v. Smith, 5 Ch. Rep. 16. Anon.
2 Freem. 128.] ^Xn dinan y. Cooke, 1 Scho. & Lef. 22. Lord Redesdale decided that, pay-
ment

(D) Part Performance in Equity. 16S

ment of purchase-money was not a part performance, since the statute having expressly
declared that it shall be so in case of goods, must have meant to exclude it in case of lands;
and see O'Herliliy v. Hedges, Ibid. 125. and 4 Ves. 720. 14 Ves.jun. 588. ace. and the cases on
the subject stated in Sugd. Vend. & P. (6th edit.) 104. ; nor is payment of auction duty on
a sale a part performance. Buckmaster v Harrop, 13 Ves. 456. and on a parol agreement for
division of an estate by arbitration, acts done by the arbitrators as surveying, &c. are not a
part performance. Cooth v. Jackson, 6 Ves. 4I.|1 [Acts done in part performance, must be
such as could be done with no other view or design than to perform the agreement, and not
such as are merely introductory or ancillary to it. Ex j)arte Hooper, 19 Ves. 479.
I Meriv. 7. They must be such, too, as would be a prejudice to the party who has
done them, if the agreement should afterwards be vacated ; and where no fraud is alleged,
it seems, that the terms of the agreement must be certainly proved. Gunter v. Halsey,
Ambl. 586. W^hitbread v. Brockhurst, 1 Bro. Ch. R. 412. The giving of possession is
to be considered as an act of part performance. Butcher v. Stepeley, 1 Vern. 363. Pyke
v. Williams, 2 Vern. 455. Lockey v. Lockey, Pr. Ch. 519. Lacon v. Mertins, sAtk. 4.
Floyd V. Buckland, 2 Freem. 268. Stewart v. Denton, Fonbl. Notes on Eq.Tr, 38.] Wills
V. Stradling, 3 Ves. jun. 578. Bowes v. Cator, 4 Ves. jun. 71. Gregory v. Mighell, 18 Ves.
jun. 328. Kine v. Balfe, 2 Ball & B. 343. Morphettv. Jones, 1 Swanst. 172. ;11 [but possession
wrongfully obtained, or from persons not competent to give it, of however long continuance,
will not avail. Hole v. White, cited in 1 Bro. Ch. R. 409. Ireland v. Rittlc, 1 Atk. 541.]
II And it must be a possession delivered in part performance; therefore, the mere continuing in
possession of a tenant cannot weigh with the court on a bill by the tenant for specific per-
formance of a parol agreement for a new lease. Wills v. Stradling, sVes. 382. ; and see
1 Ball & B. 282.; and the mere payment of additional rent by the tenant is an equivocal act,
unless it appear that the landlord accepted it on the ground of the agreement, ibid. ; and the
laying out money in rebuilding a party-wall by a tenant does not take an agreement out of
the statute, since it must be done independently of the agreement, either at the expense of
the party or his landlord. Frame v. Dawson, 14 Ves. 386,; and see Lindsay v. Lynch, 2 Scho,
& Lef 1. O'Reilly v. Thompson, 2 Cox. 271. |1 [The giving directions for conveyances, and
going to view the estate, are not considered as acts of part performance. Clerk v. Wright,
I Atk. 12. Whaley v. Bagenal, 6 Bro. P. C. 45. Hole v. White, suprh. Nor will desisting
from a jjurchase of lands in favour of another, upon certain terms, take an agreement in favoui
of the party desisting, as to part of the lands, out of the statute. Lames v. Bayley, 2 Vern.
627. ; and see Vin. Abr. tit. Contract, &c. (H) pi. 32. 2 Eq. Ca. Abr. 45. 10. which seem to be
the same case.] {b) For a parol evidence, as to the receipt of the money, seems to be as
much excluded by the statute, as parol evidence relating to the agreement ; tamen queere.
Whether parol evidence may not properly be applied to the act of receiving; though not to
the act of contracting. See 1 Pow. on Contracts, 306, 507, 308.

If a man, on a promise of a lease to be made to him, lays out Pr. Ch. 561.
money on improvements, he shall oblige the lessor afterwards to So lessee
execute the lease, beinff executed on the part of the lessee, and <'""sed where

■' o 1 ' nosspsscQ SIX

the lessor shall not be allowed to take advantage of his own fraud, years. 2 Stra.
and run away with the improvements made by another ; but if 785. Earl of
no such expense had been on the lessee's part, a bare promise of Aylesford's
a lease, though accompanied with possession, would be within ^^.?; ''e^® ,
the statute of frauds. ling^ 3 Ves.

332. and Frame v. Dawson, 14 Ves. 386. Toole v. Medlicott, 1 Ball & B. 401.||

One that could read made an agreement for a lease of twenty- Skin. 159. pie.
one years ; the lessor himself drew the lease but for one year, and Anon. [That a
yet read it for twenty-one years, and after the expiration of the ^^^^^ '" *
year ejected the lessee ; on a bill brought to be relieved upon this ^lent cannot
matter, which was proved, the court held it to be within the be supplied,
statute of frauds and perjuries, and dismissed the bill with costs, see Binsted v.
it being the plaintiff's own folly, being able to read ; seciiSi if he ^^JfiJ^g"' ^^^^
had been unlettered. on the ground

of fraud or mistake it may. Joynes v. Stathani, 3 Atk. 388.]

If a man purchases lands in another's name, and pays the 2 Vent. 36 1.
money, it will be a trust for him that paid the money, though g^p'^^ho^e it

M 2 there

Ifii AGREEMENTS.

« said that the there be no deed executed declaring the trust thereof; for the

proof must be statute of frauds and perjuries extends not to trusts raised by

very clear that operation of law.

he paid the '

purchase money ; but for this vide head of Evidence, and Trusts,

Hales V. Van- [Although parol agreements are bound by the statute, and
herchem, agreements are not to be part parol and part in writing, yet a

KuSlv Riis- deposit or collateral security for the performance of a written
sell, Bro. Ch. agreement, is not witliin the purview of the statute.]

K. 269.

Abr. Eq. 20. Where a parol agreement was concerning the lending of

pi. 5. 2Frecm. money on a mortgage, and the conveyance proposed was an ab-
Skfn^fis solute deed from the mortgagor, and a deed of defeasance from

5 Atit. 389. the mortgagee, and after the mortgagee had got the deed of con-
s Wooddes. veyance he refused to execute the defeasance, yet it was decreed

■429. [Where a gnrainst him on the point of fraud.

man, m conn- «=• *

dence of a parol promise, has omitted making that provision for others which he intended, such

promise has been enforced in equity on the ground of fraud. Davenish v. Baines, Pr. Ch. 3.

2 Eq. Ca, Abr. 43. S. C. Sellock v. Harris, Vin. Abr. tit. Contract and Agreement (H), p. 31.

Reech v. Kennigate, Ambl. 67. Harris v. Horwell, Gilb. Eq. R. 1 1.]

ALIENS.

(A) Who are Aliens, and this either by the Common

Law, or by Statute.

(B) Of Naturalization and Denization, the Difference

and Effect of them.

our Law.

[(C 2.) How far the Laws of this Country attach
upon Aliens.]

(D) What Actions Aliens may maintain ; and therein

of the Difference between an Alien Friend
and one whose King is at enmity with us.

(E) Of Pleading Alienage.

(A) Who are Aliens, and this either by the Common
Law, or by Statute.

7 Co. 18. a. _^LL those are natural-bom subjects whose parents, at the time
^setW of their birth, were under the actual obedience of our king^

who'were bom ^^ "^^osQ place of birth was within his dominions.
in Normandy, Gascoigne, &c. while under actual obedience to the kings o^ England, were subject.

bord.

(A) ff7io are Aliens by Common Lctw or Statute. 165

born. 7 Co. 20. b. Vaugh. 270. S. P. And this by the statute 42 Ed. 3. c. 10. is declared to
have been the common law; but see Bro. Denizen, 14., but those born there now are aliens,
those places not being in the actual possession of our king. 7 Co. 18. a.

If one of the king's ambassadors in a foreign country hath 7 Co. is. a.
issue there by his wife, being an English woman, by the common
law they are natural-born subjects.

If the king of England make a new conquest, the persons Dyer, 224.
there born are his subjects; but if it be taken from him again, Vaugh. 28 1»
the persons there born afterwards are aliens.

One born in Ireland, Scotland (a), or ^a/^s, or any of the Vaugh. 279.
king's plantations, is a natural subject oi England^ because he is ^°'^ '^ ^' n
born within the ligeance of the king. bT 3^ c 9 %I

(a) The Antenati, or those born in Scotland before the descent of the English crown to king
James I. are aliens ; for the uniting the kingdoms by a subsequent descent cannot make them
subjects of that crown to which they were born aliens ; but the post?iati, or such as were born
after, are not aliens ; for being born within the allegiance, and under the protection of the king
o^ England, they are his natural subjects, and not aliens. 7 Co. 1 — 28. Calvin's case adjudged,
with the reasons at large.

If aliens come as enemies into the realm, and possess themselves 7 Co. is. a.
of a town or fort, and one of them has issue born here, this issue
is an alien ; for it is not calum or soliim that makes a subject, but
the being born within the allegiance, and under the protection of
the king.

If the king o^ England enter with his army in a hostile man- Vaugh. 231,
ner the territories of another prince, and any be born within the
places possessed by the king's army, and consequently within his
protection, such person is a subject born to the king of England^
if from parents subjects, and not hostile.

Those born on the English seas are not aliens. Molloy, b. 5.

c. 2. § 9.

By a statute 25 Ed. 3. de natis idtra mare, it is declared, " that 25 E. 5. Bt. 3.
*' the king's children, wherever born, ought to inherit: and that
*' all children in heritors, which from henceforth shall be born
*' without the ligeance of the king, wiiose fathers and mothers,
** at the time of their birth be and shall be of the faith and allegi-
** ance of the king of England, shall have and enjoy the same
** benefits and advantages to have and bear the inheritance within
*' the same ligeance as other inheritors aforesaid, in time to
*' come, so always that the mothers of such children do pass the
" sea by the licence and wills of their husbands."

If an E?igltsh merchant goes beyond sea, and takes an alien Qr^ q^^ gQl
wife, the issue shall inherit him ; so it is if an English woman ^02. Bacon v.
goes beyond sea and takes an alien husband, the children there Bacon, ad-
born shall inherit her; for thoujih the statute be in the coniunc- J"^sed. Lit.

• \« ^« .Iv 22 24 S I

tive (b), yet it hath been construed in the disjunctive to hinder sjj^ 193. s.c'
this disability ; and the word and taken instead of or, as some- cited. Vent,
times it is, it being not reasonable that the child shoukl not ^.-7. S. C.

inherit the parent that is of ability, for the defect of the other *^'^^^,' f'"' ''
♦k„«. : ^ 4. was holden,

t^^t^^no;- . that if baron

and feme English go beyond sea witliout licence, or stay there beyond the time limited by the
licence, and have issue, such issue is an alien, and not inheritable. Cro. Eliz. 5. Hyde v.
Hill ; tnmcn quarc, ct vide Lit. R. 27., and Bro. tit. Denizen, G.; and see infra, [{b) But qu.
Whether the cases referred to warrant this construction; and sec the case of Doe ex dem.

M 3 Count

166

ALIENS.

of tl>c '25 E.
Dyer, 2124 in

Count Durouie v. Jones, where it was determined that the son of an alien father, of an En-
glish mother bom out of the king's dominions, cannot inherit an estate in right of hia mother.
ITic juJement of the court went upon the statutes of 4G.2. c. 21. and 15 G. 5. c. 21., which
confine the privilege to the paternal heirs, and were conceived to be parliamentary expositions
4 Term R. 300.]

Husband and wife dwelling in Calais, when it was taken by the
Fretichy fled into Flariders, where the wife was delivered of a
son; the issue adjudged a denizen, because his parents were
born in Calais, then reckoned part of the king's dominions, and
because he himself was begotten there, though to avoid the rage
of enemies born in another prince's territories.

By the 7 Ann. c. 5. § 3. it is enacted, " that the children of
" all natural-born subjects, born out of the ligeance of her Ma-
" jesty, her heirs and successors, shall be deemed, judged and
" taken to be natural-born subjects of this kingdom, to all intents,
" constructions, and purposes whatsoever.

By the 4 G. 2. c. 21. the above clause is confirmed (a)
with the following proviso, " that it shall not extend to any
" children, so as to make them natural-born subjects of Great
" Britain, whose fathers, at the time of the birth of such chil-
" dren respectively, were or; shall be attainted of high treason, by
" judgment, outlawry, or otherwise, either in this kingdom or in
" Ireland, or whose fathers at the time of the birth of such chil-
" dren respectively, by any law or law s made in this kingdom,
" or in Ireland, were or shall be liable to the penalties of high
" treason or felony, in case of their returning into this kingdom
" or into Ireland, without the licence of his majesty, his heirs
" or successors, or any of his majesty's royal predecessors, or
" whose fathers, at the time of the birth of such children re-
" spectively, were or shall be in the actual service of any foreign
" prince or state, then in enmity with the crown of England ;
" but that all such children are, were, and shall be and remain
" in the same state, plight, and condition, to all intents, con-
" structions, and purposes whatsoever, as they would have been
" in if the said act of the seventh year of her said late majesty's
" reign, or this present act, had never been made ; but out of
" this proviso are excepted (other than the children of such per-
" sons who went out of Ireland in pursuance of the articles
" oi Limerick) the child of every such person before described,
" who, at any time between the 16th day of November 1708,
" and the 25th day oi March 1731, hath come into Great Bri-
" tain or Ireland, &c., and hath continued to reside in any of
" those places for the space of two years, and during such re-
" sidence hath professed the protestant religion ; also every child
" whose father came into Great Britain or Ireland, &c. and pro-
" fessed the protestant religion, and died there between the
" times aforesaid ; also every child whose father continued in
the actual possession or receipt of the rents and profits of any
lands, S)C. for the space of one whole year, at any time be-
tween the aforesaid times, or hath bmajde, and for valuable
" consideration, sold, conveyed, or settled any lands. SfC. in

« Great

7 Ann. c. 5.

4G.2. C.23.
[(a) The con-
firmatory
clause here
alhuied to,
differs from
the statute of
Ann. in this
respect, that it
restricts tiie
privilege to
the paternal
line. The
words are,
" That all
children born
out of the
ligeance, &c.
whose/<////tT
shall be natu-
ral-bom sub-
jects, &c."]
Ijlf the
lather has lost
his character
of natural-
born subject
before the
birth of the
child, the child
is an alien.
Doe dem.
Thomas v.
Acklam ,
2 Bara. & C.
779.; and see
pottf 168.||

(A) Pfho are Aliens by Common La'w or SUttute, Id?

'* Great Britain or Ireland ,• and any person claiming title there-
*' to under such sale, ^c. who hath been or continued in the
** actual possession or receipt of the rents and profits thereof,
*' for the space of six months, between the times aforesaid,
** tlien, Sj-c.

[By the 13 G. 3. c. 21. the provisions of the above acts are isQ.s. c.2i.
extended to grand-children, still however adhering to the pater-
nal line, with provisoes that nothing in that act " shall be con-
** strued to affect any of the limitations or restrictions of the act
" of 4 G. 2. c. 21. or to repeal or alter the act of 5 G. 1. c. 27.
*' hereafter mentioned ; or to repeal or alter any law or custom
** concerning aliens' duties, customs, and impositions, or to cause
" any privilege, exemption, or abatement relating thereto, in
*' favour of any person naturalized by virtue of that act, unless
*' such person shall come into this realm, and there inhabit and
** reside, and shall take and subscribe the oaths, and make, re-
*' peat, and subscribe the declaration appointed by the act of
** 1 G. 1. c. 13., entitled an act for the further security, 4"^. at
** the places and times, and in the manner directed by that act,
** and also receive the sacrament of the Lord's Supper according
" to the usage of the church of England, or in some protestant
*' or reformed congregation within the kingdom of Great Britain,
" within three months before his taking the oaths in the said
** act mentioned, and shall, at the time and place of taking such
** oaths, and of making, repeating, and subscribing the said de-
** claration, produce a certificate signed by the person administer-
** ing the said sacrament, and signed by two credible witnesses,
** whereof an entry shall be made of record in the court and
** courts respectively wherein such oaths shall have been made
*' and subscribed, without any fee or reward. And it is further
*' provided, that no person shall be by this act enabled to defeat
** any estate, right, or interest, which on the last day of that ses-
** sion should be had or vested in any other person, or to claim or
" demand any estate or interest which shall hereafter accrue, so
** as such claim or demand shall be made within five years after
** the same shall accrue."

By Stat. 14? & 15 H. 8. c. 4. it is enacted, that if an English 14 & 15H. 8.
subject go beyond the seas, and there become a sworn subject to c* *.
any foreign prince or state, he shall, during his residence abroad,
pay such impositions as aliens do : with a proviso, that if he re-
turns, and lives here, he shall be restored to his liberties and
privileges.]

By the 5 G. 1. c. 27. it is enacted, " that if any manu- sG. i. c.27.
** facturer or artificer of or in wool, iron, steel, brass, or any
*' other metal, clockmaker, watchmaker, or any other artificer
** or manufacturer of Great Britain, shall at any time after the
*' first day of May 1719, go into any country out of his ma-
** jesty's dominions, there to use or exercise, or teach any of the
*' said trades or manufactures to foreigners: or in case any of
" his majesty's subjects now being, or who hereafter shall be in

M 4 «* any

168

ALIENS.

Fost.Cr.L. 59.
Dyer, 29a. b.
500. b.

1 Wooddcs.
382.

Doe dem.
Thomas v.
Acklam,
2 Barn. & C.
779.

" any such foreign country out of his majesty's dominions a>
" aforesaid, and there using or exercising any of the said trades-
" or manufactories herein-before mentioned, shall not return
" hito this realm within six months next after warning shall be
" given to him by the ambassador, envoy, resident, minister, ok
" consul of the crown of Great Britain, in the country in which
" such artificer shall be, or by any person authorized by such
" ambassador, ^c. or by one of his majesty's secretaries of state
" for the time being, and from thenceforth continually inhabit
" and dwell within this realm ; then and in such case every
** such person shall be deemed an alien."

[It should here be observed, that the duty of allegiance arising
from birth is perpetual and unalienable, and that it is not in the
power of any private subject to shake off his allegiance, and

transfer it to a foreign prince ; nor is it in the power of any
foreign prince by naturalizing or employing a subject of Great
Britain, to dissolve the bond of allegiance between that subject
and the crown. But when, by treaty, especially if ratified by
act of parliament, our sovereign cedes any island or region to
another state, the inhabitants of such ceded territory, though
born under the allegiance of our king, or being under his pro-
tection whilst it appertained to his crown and authority, becoma
effectually aliens, or liable to the disabilities of alienage, in re-
spect of their future concerns with this country. And similar to
this seems the condition of the revolted Americans, since the
recognition of their independent commonwealths.]

II This question has now been decided. The case was an action
of ejectment, to recover premises at Kingsto7i-tij)on-Hnll, which
came on to be tried before Abbott C. J. at the York summer
assizes 1822. The jury found a special verdict, stating that
Elizabeth Harrison died seised of the premises in 1813, without
a will, and never having been married, and that Frances Mai-y
(one of the lessors of the plaintiff), the wife of Philip Thomas,
was her next heir, if she was capable of inheriting. Peter Har-
rison, the uncle of Eliz. Harrison, and the grandfather o{ Frances
Mary Thomas, being a natural-born British subject, went to the
British colonies in North America, and died there in 1775, leaving
several children who all died without issue in the life of Elizabeth
Harrison, except one daughter, Elizabeth Harrison, who in 1781
married at Rfiode Island, one of the British Colonies, James
Eudlow, a native subject, born in the American Colonies. Eliz.
Ludlcnx) died in America in 1790, leaving the lessor Frances
Mary her only child, she having been born at Rhode Island, in
the United States, on the 4th Febniary 1784, after the recognition
of the independence of the United States by the British crown,
which recognition took place on the 3d September- 1783. James
Ludlffw and Elizabeth his wife continued to reside in America
after the recognition of independence. For the plaintiff it
was contended, that the parents of Frances Mary Thomas,
having been natural-born subjects of the British crown at the

time

(B) Of Naturdlization and Denization. 169

time of the separation of the colonies, did not cease to be so
by that event, and that the lessor Frances Maty Thomas was
therefore the child of a natural-born subject, and as such entitled
to be considered a natural-born subject of the crown of Great
Britain within the meaning of the statutes 25 Edw. S. stat. 2
7 Ann. c. 5. ^S.^ Geo. 2. c. 21. But the court held, that under ,. ^^ . ,
the words of this last statute, a child was not to be considered a Lessee v.
natural-born subject, unless the father were at the time of the Rochester,
birth a subject; and that as Mr. Ludlow had lost the character 7 Wheaton's
of a subject of Great Britaiti at the separation of the colonies from CaseTin^he
the mother country, his daughter born after that event was an Supreme
alien, and incapable of inheriting, and judgment was accordingly Court of the
given for the defendant. (In a casein the supreme court of the United States.
United States, it had previously been determined that natives of
Great Britain were aliens, and incapable of inheriting lands in
the United States, {a)

But, in a subsequent case, where the parents were natural-born Auchmuty v.
British subjects residing in America before the recognition of the Mulcaster,
independence of that country, and on that event adhered to the t^f^'
British government, (by embarking with the British troops when
they evacuated New York, and residing in England for two years,
and by the father going to America under an appointment from
the British government), it was held, that their children born
after the recognition were capable of inheriting lands in this
country. Bayley J. said, — There is a very plain distinction be-
tween this case and that of Doe v. Acklam. In that case it appeared
that the parent, through whom the claim was made, put off his
allegiance at the time of the treaty, which enabled him to do so;
here the parent took no such step at that time, and the law did
not enable him to do so at any future time. ||

(B) Of Naturalization and Denization, the Difference
and Effect of them.

A LIEN born may become a subject of England two ways, by i Inst, 8. a.

denization and by naturahzation : denization is by the king's ^^^' ^- Pal>".

letters patent ; it receives him into the society as a new man, and "^'i ^?"'''^y
11-11 1 1 • / \ 1 1 1 a"" Uixon.

makes him capable to purchase and to transmit [a) lands by Cro. Jac. 539.

descent, but not inheritable to any other relation ; for though the (a) His

king by his charter may admit him into the society, yet he can- children born

not alter the law, which denied him to inherit any relations : but jgj^[ ^^^

if he be naturalized by act of parliament, then he in all things shall inherit

inherits like a natural-born subject, because in an act of parlia- but not those

ment every man's consent in included. ^°^" before;

•^ . • but all the

children of one naturalized shall inherit, as well those born before as after, Co. Lit. 8.
Style's R. 139.

A man may be made a denizen in tail, for life, years, or upon 2 Jones, 12.
condition : so the king may make a particular denization, as if ^™-'^^^- ^3^-
he grants to an alien qtiod in qidbiisdam curiis suis Anglitv audi- '^^ ^'t. 129. a.

atur

170 ALIENS.

ulur ut Anglus, et quod non repeUatur per illam excepiionem qttod
est alienigena.
Co. Lit. 1 89. 0. But one cannot be naturalized, either with limitation for years,
2 Roll. R. 95. life, or in tail, or upon condition; for it is against the absolute-
ness, purity, and indelibility of natural allegiance.
Carter 185 ^^ * "^^" ^^ naturalized in Ireland by the parliament there, this

aKcb.eoi. is no naturalization as to England, for the parliament of /r^/an^
2 Jonc«, 12. hath no direct or consequential power of binding England; and

2 Vent. 2. naturalization is but a fiction, which can only bind those that
But a natu- . , ..

ralization in consent to it. .,,.,, u « • u

England makes a man a natural-born subject of Ireland, Vaugn.291. hie is here made a
natural subject of the Britith dominions. [But Q,u. since the statute of 25 G. 3. c. 28.]
Roll. Abr. 195. If an alien be made a denizen, and the letters of denization
Manning's Yiaye a proviso (usual in such charters (a), that the denizen shall
^"c r^Txhis ^^ ^^ Mege homage, and that he shall be obedient, and observe
proviso is the laws of this realm ; this proviso is not any condition, for
required by though he never doth his liege homage, nor is obedient to all
Stat. 32 H. 8. j.j^g j^^g of this realm, yet this will not make the denization voidj
C.16. $ .J £^j, \^\iQ doth not observe the laws, he shall forfeit the penalties

appointed by them.
vJac.i. 0.2. By the 7 Jac. 1. cap. 2. it is enacted, " That no person or
IIThis provision " persons of what quality, condition, or place soever, being of
was dispensed « the age of eighteen years or above, shall be naturalized or
T' h* *th " '''^stored in blood, unless the said person or persons have re-
famous Jew " ceived the sacrament of the Lord's Supper within one month
Bill, 26 G. 2. " before any bill exhibited for the purpose ; and also shall take
c. 26. ; but this <t ^he oath of supremacy and the oath of allegiance in the parlia-
statute wasre- « pient house, before his or her bill be twice read ; which oath
27 G. 2. c. i.|| " the lord chancellor, or lord keeper, and the speaker of the

" house of commons, have authority to administer."
Molloy, bk. 3. A denizen is not capable of nobility, or to sit in parliament ;
c 3. § 14. for that to have a power of making laws it is necessary he should
be totally received into the society, which he cannot be without
the consent of parliament.
[Co. Litt. 278. [If ^^ alien be a disseisor, and obtain letters of denization, and
b.] then the disseisee release unto him, the king shall not have the

land ; for the release hath altered the estate, and it is, as it were
a new purchase ; othei'wise it is, if the alien had been feoflfee of
the disseisee.]
Fish V. Klein, ||But where an alien trustee joins in a conveyance, and after-
2 Meriv. 431 . ; wards obtains an act of naturalization, by which it is declared
52*^2 Ves 286* ^^ ^^ ^^ ^^"^ thenceforth naturalized, and shall be and is
538. 5 Bro. enabled to " ask, take, have, retain, and enjoy all lands which
P.C. 91. " he may or shall have by purchase or gift of any person what-

" soever," and " shall be, to all intents and purposes, as if he
" had been a natural-born subject," this act cannot retrospec-
tively confirm the title of the purchaser under the conveyance
previous to the act.||
1S& 15 W. 3. By the 12 & 13 W. 3. cap. 2. it is enacted, " that no person
" born out of these kingdoms, (although he be naturalized or
" made a denizen,) except such as are born o^ English parents,

« shall

(B) Of Naturalization and Denization,

171

[{a) A natu-
ralized person
is not eligible

" shall be capable to be of the privy council, or a member of
" either house of parliament, or to enjoy any office or place of
" trust, either civil or military ; or to have any grant of lands,
" tenements, or hereditaments from the crown to himself, or to
" any other or others in trust for him."

But this statute by the 1 Geo. 1. stat. 2. cap. 4. is explained iG. i.stat. 2.
so as not to extend to disable or incapacitate any person, who c.4.
at or before his majesty's accession to the crown was natural-
ized, to be of the privy council, or a member of either house
of parliament, 8fC. ; and by this statute is is enacted, " that no
" person shall hereafter be naturalized, unless in the bill exhi-
" bited for that purpose there be a clause, or particular words
" inserted, to declare that such person shall not thereby be en-
" abled to be of the privy council, or a member of either house
" of parliament ; or to take any office or place of trust {a) either
" civil or military, or to have any grant of lands, tenements, or
" hereditaments from the crown, to himself, or any other in trust to the office
*' for him; and that no bill of naturalization shall hereafter be of constable.
" received in either house of parliament, unless such clause or m^. when any
" words be first inserted or contained therein. (6)" foreigner, dis-

tinguished by eminent rank or services, is naturalized, it is usual first to pass an act for tiie
repeal of these statutes in his favour, and then to pass an act of naturalization without any
exception. 4 Ann. c. 1. 7 G. 2. c. 5.

[And by 14 G. 3. c. 84. it is enacted, " that no naturaliz-
" ation bill shall in future be received, unless there shall be a
" clause in it, declaring, that the person to be naturalized shall
" not thereby obtain, or become entitled to claim within any effect in natu-
" foreign country, any of the immunities or indulgences in trade, ralization bills
" which are or may be enjoyed or claimed therein by natural- ^^'03*^ ^"^
" born British subjects, by virtue of any treaty or otherwise, acT^'llie nrac-
" unless such person shall have inhabited or resided within Great tice had ob-
" Britain^ or the dominions thereto belonging, for the space of tained ever
" seven years subsequent to the first day of the session of parlia- '^'"'^^ '^^ J'^^"^
" ment in which the said bill of naturalization shall have passed; sequence^o"a
" and shall not have been absent out of the same for a longer petition to
*' space than two months at any one time during the said seven parlianient at
« years " {c\ ^^^ tvm^ from

\ , the City of

London, complaining of the great abuse of the privileges of naturalization in this respect.
Debrett's Deb. 5 vol. 124.]

By statute 13 G. 2. c. 3. every foreign seaman, who in time of is G.2. c. 3.
war serves two years on board an English ship by virtue of the
king's proclamation, is ipso facto naturalized under the like
restrictions as in 12 W. 3. c. 2.; and by statutes 13 G. 2. c. 7. 12W.3. c. 2.
20 G. 2. c. 44. 22 G. 2. c. 45. 2 G. 3. c. 25. and 13 G. 3. c. 25. is G. 2. c. 7.
all foreign Protestants and Jews, upon their residing seven years ^oG 2 '^4^'
in any of the American colonies, without being absent above two 2 G. s. c. 25.'
months at a time, and all foreign protestants serving two years 13 G. 3. c.25.
in a military capacity there, or being three years employed in
the whale-fishery, without afterwards absenting themselves from
the king's dominions for more than one year, and none of them
falling within the incapacities declared by statute 4 G. 2. c. 21.

shall

14 G. 3. c. 84.
[(c) It was
usual to insert
a clause to this

igCt ALIENS.

shall be (upon taking the oaths of allegiance and supremacy, or,
in some cases, making an affirmation to the same effect,) natu-
ralized to all intents and purposes, as if they had been born in
this kingdom ; except as to sitting in parliament or being of the
privy council, and holding offices or grants of land, S^c. from the
crown within the kingdoms of Great Britain and Ireland. By
statute 26 G. 3. c. 50. § 24.. 27, 28. and 28 G. 3. c. 20. § 15.
every foreigner who has established himself and family in Great
Brttaiji, and carried on the southern whale-fishery, and im-
ported the produce thereof for the space of five years succes-
sively, is declared to be entided to all the privileges of a
natural-born subject.]

Vaugh. 227. A N alien cannot purchase (a) or inherit any lands [in this
291. 7 Co. 16. country, because an interest in the soil requireth a perma-

Dyer, 2. pi. 8. ^^^^^ allegiance, which would probably be inconsistent with that
£g1it that ^hich he oweth to his own natural liege lord.]
the laws aipiinst aliens were introduced in the time of Henry the Second when a law was made
at the [)arlianient of Wallingford for the expulsion of strangers, in order to draw away the
Flemings and Ficards who were brought into the kingdom by the wars of King Stephen.
Daniel, 67. Others have thought that the original of this law was far more ancient ; and
that it is an original branch of the feudal law ; for, by that law, no man can purchase any
lands without being obliged to fealty to the laws of whom they are holden ; so that an alien,
who owed a previous faith to another prince, could not take an oath of fidelity in another
sovereign's dominions, Spelm. tit. Ligeantia, 568. Custumer, c. 43. Some restraints have
been laid upon aliens by the laws of almost all countries. Among the Romans, the civet
Romani only were at first esteemed freemen ; afterwards, when their territories increased, all
the Italians were made free, under the name of Latins, only they had not the privilege of
wearing gold rings, which was altered by Justinian ; at last, all born within the pale of the
empire were citizens, in orbe Romano qui sunt, ex conslitutione Imperatoris Antonini civet
Romani effecti sunt. Vicinius, 27. Dig. Lib. 1. tit. 5. fo. 16. Dio Cassius relates the occasion
of this constitution being made, in Excerpt. Vales, p. 751. The Orbis Romanus of Spanheim
is a complete history of the progressive admission of Latium, Italy, and the provinces, to the
freedom of Rome. Lord C. J. Hale saith, that the law of England rather contracts than
extends the disability of aliens, because the shutting out of aliens tends to the loss of people,
who, when laboriously employed, are the true riches of any country. Ventr. 427, 2 Roll.
Rep. 94. [a) He may purchase, but cannot hold. Co. Lit. 2. b. Therefore, if tenant in tail,
he may suffer a recovery, and dock the remainders. Goldsb. 102. 4 Leon, 82. Bro. tit.
Denizen and Alien, 17. On a covenant to stand seised, an use will arise for an alien. Godb.
275. But by act of law, he cannot take, as by descent, courtesy, dower, guartlianship. Ventr.
417. Molloy, 464. 7 Co. 25. By a special act of parliament, not printed. Rot. Pari. 8 H. 5.
n. 1 5. women aliens marrying Englishmen, with the king's licence, were allowed in future to
demand dower. But this act not extending to those married before, therefore, in Rot. Pari.
9 H. 5 n. 9. there is a special act of parliament to enable Beatrice Countess oi Arundel, born
in Portugal, to demand her dower. Hal. MSS. Hargr. Co. Litt. 31. b. n. 9. See ace. Roll.
Abr. 675. The disability of an alien to hold lands for his own benefit is not to be considered
as a penalty or forfeiture ; but ariseth merely from the policy of the law ; and therefore, it
hath been adjudged in equity, that he cannot demur to a discovery of any circumstances
necessary to establish the fact of alienage. Attorney-General v. Duplessis, Parker, 144. 5 Bro.

Sid. 193. 198. And as an alien cannot inherit himself, so he cannot be
429. Colling- "iherited ; the grandfather born in England^ the son an alien,
wood v. Pace, the grandson born in England^ the grandson shall not inherit
Hard. 224. Co. the grandfather, because he must then represent the father,
Lite 8. cont. who cannot be represented ; but if the father be an alien, and

two

two brothers born in England, they may hiherit each other,
because the descent is immediate, and they do not take by
representation of the father.

If the eldest son be an alien, the younger brother born in Vent. 417.
England shall inherit the father ; otherwise it were if the eldest ' .^"*'- ^- ?L,
son were attainted, because the eldest son and all his descend- ^Ixher being a
ants are before the younger brother, and the younger brother natural-born
cannot inherit before that line is extinct; and it is a foreign pre- subject, the son
sumption, to suppose that any of that line should come over and "^^^^^ be so
have children in England; but the person attainted is supposed of the^statutes
to have all his children residing in the kingdom under the king's of 7 Ann. c. 5.
allegiance, therefore there is a line continuing before that of and 4 G. 2.
the younger brother. ^^f^^'^ "'""''•

For the same reason, if an alien hath four sons, the two eldest
aliens, and the two younger naturalized, and one of the younger
sons purchaseth lands and dies, the eldest brother having issue
born within the realm, the younger brother, and not the issue of
the eldest, shall inherit.

If an alien hath a son alien, and afterwards is made a denizen, Cro. Jac. 539.

and hath a second son, the second son shall inherit, thouffh the ^"'^ ^° ^\ ^ ^"*^'
M ^ u ^^ ' o 8. a. to be un-

eldest son be alive. derstood.

If an alien hath issue two sons, A. born beyond sea, and B. Palm. 5. Cro.
born in England, and A. is naturalized, he shall inherit B. l^*^' •539. God-

And now by the 11 & 12 W. 3. c, 6. it is enacted, " that all 11 & 12 W.s.
" and every person or persons, being the king's natural-born ^^ ^•
" subject or subjects, within any of the king's realms or domi- ^j^^®, ^^^^^
" nions, shall and may hereafter lawfully inherit and be inherit- scendinfr to an
*' able, as heir or heirs to any honours, manors, lands, tenements, alien could
" or hereditaments, and make their pedigrees and titles by "°*^ ^]^ taken
" descent from any of their ancestors, lineal or collateral, al- 1 ^"J'' ^?^»
" though the father and mother, or fathers or mothers, or other could not ^
" ancestor of such person or persons, by, from, through, or oblige his per-
*' under whom he, she, or they shall or may make or derive their ^?" and ser-
" title or pedigree, were or was, or is or are, or shall be born V^^^- ^"^ «*
" out of the king's allegiance, and out of his majesty's realms that subjects '
" and dominions, as freely, fully, and effectually to all intents within the al-
" and purposes, as if such father or mother, or fathers or legiance, who
" mothers, or other ancestor or ancestors, by, from, through, or him^rif "kf^
" under whom he, she or they shall or may make or derive disabled from^
" their title or pedigree, had been naturalized, or natural-born conveying de-
** subjects." scent, by the

operation of a
reason of which the very reverse was true as to themselves, therefore this statute was made. Law
of Forfeit. 84.] See 25 G.2. c. 39. which obviates some doubts that may arise therein, and con-
fines the benefit of this statute to such heirs as shall be living, and capable of taking the estate
at the death of the person last dying seised. But in case the descent shall be cast upon a
daughter, and there shall be afterwards a son born, or one or more daughter or daughters, the
descent so cast upon the daughter shall, in the one case, be entirely divested in favour of
the son, and the after-born daughter or daughters shall, in the other case, inherit in copar-
cenery with her.

If an alien purchases land, the king shall have it upon office Co. Litt. 2. b.

found ; for since the freehold is in the alien, and he is tenant to "j?'f'r^' ^^**^

the lord of whom the lands are holden, it cannot be devested pi.'oi. "'

rf^

ALIENS.

pi. 61. Dyer,
283. pi. 31.
Note; There
are two sorts
of offices, an
office of enti-
tling, which is

o? Mm but by some notorious act, by which it may appear tlmt
the freehold is in another ; but if an alien purchases lands and
dies, then the freehold is in the king without office found, be-
cause no man can take it as heir to the alien, therefore the free-
hold is cast upon the king; but if an alien purchases, and after-
wards is made a denizen, and then hath issue, and dies, the issue
shall inherit till office found, because there is a person in being
to take as heir to the denizen, upon whom the law casts the
freehold, which is not to be devested out of him without the
solemnity of an office.
Goldsb. 29. If an alien and a subject purchase lands to them and their

pi. 4. Leo. 47. i^eii-s^ tJie survivorship shall take place till office found, but the
office found entitles the king, and severs the joint-tenancy ; for
the freehold is in the alien by the solemnity of livery, till it is
devested out of him by solemn office found ; and every person,
who is resident in the kingdom, is supposed a natural-born
subject, till the contrary be found by office,
under the great seal ; and an office of instruction, which is under the seal of the Exchequer ;
the office of entitling is an inquest, which gives the king a title, as here in the case of
aliens, &c. 5 Co. 52. Page's case. See Gilb. Hist. View of the Exchequer, 132, 1.53, 134.
Gilb. Hist. Chan. 12. [The king has a title before office found; the office vests the possession.
5 Co. 52. Hob. 153. Parker, 152. Choses in action belonging to an alien enemy are forfeit-
able to the crown, but there must be an inquisition to entitle the king ; and if a peace be made
before the inquisition is taken, the cause of forfeiture is discharged. Attorney-General v.
Weeden and Shales, Parker, 267.]

Roll. Abr. 194. If an alien purchases a copyhold in fee in the name of J. S.
j\^l\\]'^' ini trust for him and his heirs, though it be found that the copy-
14. Stile 20 ' ^®1^ ^^^ ^" ^""^^^ ^°^ ^^^ alien, and that J. S. had the legal estate,
yet the king must sue in Chancery to have the trust executed
for his benefit.

II An alien cannot hold property as a trustee, or make a good
conveyance of it to a purchaser. Where an alien was a joint
devisee in trust, and joined in a conveyance of the trust estate to
a purchaser, and after the conveyance, in order to confirm the
title, procured an act of naturalization, whereby he was author-
ized, "to take, retain, have, keep, and enjoy all manors, lands," Sj-c.
the Vice-Chancellor held, that the estate being out of the alien at
the time of the conveyance, and the act being silent as to it, the
vendee was not in a better situation than the alien himself. —
N. B. The vendors had endeavoured to have retrospective
words introduced into the naturalization-act, but a departure
from the common form was found impracticable. ||

[An alien infant, under the age of twenty-one years, cannot be
a merchant trader within this realm, nor can he enter any goods
in his own name at the custom-house.]

An alien cannot purchase a lease for years of lands, but he

_ _ ^^ may, if he be a merchant (a), take a lease of a house for his

to rent houses, habitation, for years only, and this is for the encouragement
and to buy and of commerce; for if an alien trade he must have an abode
c^mmoditS" among "s; but if he depart the kingdom, or die, it goes to
themselves, ^^^ ^^"S' "^^ t® ^is executors or administrators {b) ; because it
without any in. was Only a personal privilege annexed to the alien, as a mer-
chant,

21. 41. 76.
Parker, 156.

Fish V. Klein
2 Meriv. R.
431.

fit. 13 & 14
Car. 2. c.ll.
$ 10.

[Merchant
strangers were
first permitted

chant, for the encouragement of commerce, and consequently terruptionfiom
must expire with him, without going to his executors or ad- *^^ citizens,

ministrators. fj^l' ^^^ f ''«•

1284 ; for be-
fore that time they hired lodgings, and their landlords were the brokers, who sold all
their goods and merchandizes for them, Rapin, 361. note 9. Fab. Chron. This indulgence,
together with the loss of their brokerage, seems to have provoked the resentment of the
citiaens : for, in the Parliament Roli, in the 18th year of Edward the First, {viz. A.D. 1289),
we find the following petition, and answer : " Gives London, pctunt quod alienigena; viercatoj'cs
" expellantur a civitate, quia ditentur ad dcpaupcrationem civiuvi" See. — Responsio : " Sex
'* intcndit quod mercatores extranei sunt idonei ct utiles magnatibus. Sec. ct non habet concilium
" eos expellendi" 2 Inst. 741.] (a) Poph. 36. Co. Litt. 2. b. and the notes in 14th edit.
Roll. Abr. 194. must be a merchant, {h) Not if he goes beyond sea, and leaves servants in his
house during his absence. Dyer, 2. b.

But by the 32 H. 8. c. 16. paragr. 13. it is enacted, " that 32 H. s. c. le.
" all leases of any dwelling-house or shop within this realm, or par. 13. [Sir W.
*' any of the king's dominions, made to any stranger artificer, or /, ri ]°"p
" handicraftsman born out of the king's obeisance, not being ^^2.) says th'at
" denizen, shall be void, and of no effect ; and the person so the statutes,
" taking such lease forfeits lOOZ. and the person letting 100/. prohibiting

" more ; one moiety to the king, and the other to him that will f ^^" artificers
et c ai >j '^ work tor

" sue for the same. themselves, are

generally held to be virtually repealed by the stat. 5 Eliz. c. 7.; but there doth not appear to be
any other authority to that,effect. 1 Wooddes. 575. note.] liThe statute 32 H. 8. c. 16. § 13.
is unrepealed, and surely requires the revision of the legislature. Though the statute avoids
leases, &c. made to stranger artificers, yet if such artificer occupies a dwelling-house or shop
under an agreement which does not amount to a lease, as if he be tenant from year to year,
or for one year or a shorter time, an action for use and occupation lies against him. 2 Show.
135. And if an alien-amy occupy a dwelling-house of the yearly value of 10/. as such tenant,
and reside in it forty days, he gains a settlement. The King v. Eastbourne, 4 East, 105. j and
see Hargr. & But. Co. Litt. 2. b. notes 7, 8.?; and 1 Will. Saund. 7, 8.|1

Upon this statute the case was, an action of debt was brought Sand. 1, to 10.
upon an obligation, and upon oyer demanded of the condition, ^^^ ^^- ^' ^*
it was recited, and it referred to indentures, which indentures were j jg^ *g q'
likewise recited in hcoc verba; the indentures were upon a lease 2 Show. R,
of a house in Westminster, reserving rent with covenants, Sfc. ; 135. S. C.
the defendant pleaded 32 H. 8. c. 16. and that he was an ^^J^l'd^^'^b
alien, S^c. and so would avoid the, lease and the rent, and all the ^Sod^^law rio '
.security; divers exceptions were taken to this plea. 1. He has this case two '
not said where he was an artificer, but this was over-ruled ; for actions were
it is a personal quality, and shall follow the person, and is uni- ^'■^"ght ; the
versal. 2. The defendant ought to have set forth and pleaded rg^t- theother
the indenture; hnt per Cur., — since the plaintiff has brought it the action here
into court, as must be intended, and set it forth, the defendant mentioned. la
may plead upon it without setting it forth again. 3. The plea f*" ^^^ ®*^",
is, that indentura prccdicta vacua existii, and this was likewise gd • it was in
overruled ; for the law is, that the indenture and bond make but the first that
one security, and if the covenant be released before breach, the the objection
bond will signify nothing. 4. This appears to be a messuage ["fro made, for
i. u Ju u ^ J -i.^ 1 • u ° the want of the

or tenement, but he has not averred it to be a mansion-house or averment was

shop, according to the statute ; and upon this point the court at taken : for the
first were divided. Keyling held, that messuagium is mansum, other stood
et quod dare constat non debet ve^-jficare. Morton : Though 7nes- ^ ^. f^,
smigium be a word of art, and may be applied to other things by opinion of the*^
a large sense, as to a barn or chapel ; yet in propriety it is a court was not

mansion-

176 ALIENS.

mansion-house, and sliall be intended so. Twisden and WyndJiattti
on the point ; ^^{0.1 it ought to have been averred ; for he must bring himself
Int.^belie'vinV precisely within the statute, especially in such a case as this,
iha't jutlgment where he would avoid his own contract; but afterwards the
wouUl be pro- defendant had judgment,
nounced.
against him, submitted.]

2 Show. R. A special verdict found, that the plaintiff made a lease of a
135. Piliiing- jioQse to the defendant, who was found to be an alien artificer,
ton V. Pe^^jCh, ^^j ^^^^^ ^^j^j^ j^^^^ ^^^^ made by indenture between the plaintiff
inent° (o)^iit and defendant, and that there was no other security or promise
per Cur. -there made by the defendant; and that the defendant entered, and
are other ways enjoyed so long, for which the plaintiff brought a 5'?m«/ttw
to evade It; as, ^ ^^y^ ^^ which the defendant pleaded no7i assumpsit ; and the
to make an i.<>i vi iiii

agreement for matter bemg round ut supra, the court held, that an assumpsit

as long as you would not lie. 1. Because this (a) would evade the statute.

and I please, g. A promise in law ih) never takes place where there is an

at the rate of ^ , ^ , ^

20/. per annum actual agreement.

for an assumpsit ^iu ije thereon ; or, you shall have my house for so long as you and I please,

for so much as it is worth. (Jb) No such thing. 6 Mod. 131.

3 Mod. 94. Debt upon an obligation for performance of covenants in a
r'hV^^'^1 ^^^^ ®^ ^ house, S^c; the defendant pleaded the statute of
Front^!" *" ^2 ^* ^* ^' ^ ^' ^"^ ^^^ forth that he was a vintner, and alien

artificer ; and upon demurrer it was insisted upon for him, that

a vintner is as much an artificer, and within the meaning of the

statute, as a mercer, draper, or grocer. Chief Justice : — This

statute refers to another made 1 R. 3. c. 9. tohich prohibits alien

artificers to exercise any handiaaft in England, unless as servant

to a subject skilful in the same art, upon pain of forfeiture of his

goods ; now the mystery of a vintner chiefly consists in mingling

wines, and that is not properly an art, but a cheat; so the

plaintiff had judgment.

7 Co. 25. Co. If a woman alien, be she friend or enemy, marry a subject,

Liu. 31. a. b. gj^g shall not be endowed; because, by the policy of the common

But by the law ^^» ^^ aliens are disabled from acquiring any freehold amongst

of the crown, US : dower, too, is an estate created by act of law ; and therefore

if the king mar- the law, which nilfrustra agit, shall not transfer an estate to one

17 an alien, she ^yj^^ cannot keep it ; but must immediately, in respect of her

dowed,because ^^S^^ disability, give title to another: and there is a diversity

princes cannot between such acts of law and the acts of the party himself; as if

marry accord- an alien makes an actual purchase, Sfc. so aliens shall not be

d^nUyl^unJess '^nants by the courtesy, by the same reason.

to persons abroad; and now, by a special act of parliament, not printed, 8 H. 5. 12. 15.
women aliens who marry with the king's licence, to Englishmen, shall be endowed ; so of
English women who marry aliens by the same licence; but this latter part can only be meant
where the alien husbands are after made denizens, that their wives shall have dower of lands pur-
chased before ; for otherwise they, having no capacity at all to hold any lands of any estate of
freehold, can derive no title of freehold to their wives, and this act never intended to put
them in a better condition for that purpose than they were before ; but it must be intended
of land purchased before their denization ; since as to land purchased after, they would not
want the assistance of an act of parliament, being by the common law dowable of these. Roll.
Abr, 675. If one marries a woman alien without such licence, and then sells his lands, and
after the wife is made a denizen, she shall not be endowed, because her capacity began by the

denization,

denization, and she was before absolutely disabled to hold any land ; but if this marriage were
by the king's licence, then it seems the wife may be endowed, because being married conform-
able to that act, her title to dower began presently, and cannot be defeated by any after-act of
the husband's. Co. Litt. 33. a. 13 Co. 23.

Aliens seem not incapable [of the superior ecclesiastical pre- Comp. in-
fer ments (a),] and though this practice, says Watsoji, has always cumb. 213,
prevailed, yet, says he, it proceeded rather from the pope's p^^" Hughes's
usurpation, and a submission to his pretended authority in q ■^^^ ^ ^i^
church matters, than from any nice distinctions made use of Abr. 548.
between spiritual and laymen, that the former would less dis- 4 Inst. 338.
cover the secrets of the realm, or transport the treasure thereof ^^°°',t^'
to nourish the king's enemies, than the latter. ^^^ „gg ^^*

(a) Aliens prohibited to take benefices without the king's licence. 5 R. 2. c. 3. 7 R. 2. c. 12.
1 H. 5. c. 7. [To the first of these statutes, it is said, in the old abridgment, that the Lords
Spiritual did not assent.]

[By the statute of 24 G. 3. c. 35. the bishop of London, or 24 G. 3. c. 35.
any bishop appointed by him, is enabled to ordain aliens either
as priest or deacons, without requiring them to take the oath of
allegiance, provided that they do not officiate in any place within
the king's dominions : and further, that in the letters testimonial
of such orders, the name of the person so ordained be inserted,
with the addition of the country to which he belongs, and the
further description of his not having taken the oath of allegiance,
being exempted from so doing by this act.

II Aliens are disqualified to serve on juries or inquests, except gQ 4. c 50
juries de medietate lingua. ' § 3. Alienage

IS a ground of challenge to a juror, and the objection must be taken when the party has an
opportunity of challenging. And it seems not to be a ground- of challenge to a special juror.
See the King v. Sutton, 8 Barn. & C. 417.

By 5Q G.3. c. 86. various regulations are established respect-
ing aliens arriving in or resident in this kingdom ; but this sta-
tute, after having been continued by several subsequent acts,
has now expired. By 7 G. 4. c. 54<. (commencing 1st JwZy, 1826) 7G. 4.c. 54.
the above act is recited as being about to expire, and it is
recited to be expedient, in lieu of its regulations, that provision
should be made for a complete registration of all aliens, and it
is enacted that every alien in the realm at the commencement
of the act shall, within foui'teen days, make a declaration of his
abode, name, rank, 4'^.; and if a domestic servant, then also of
the abode, S^c. of his master or mistress, and of the country
from whence he came, or of which he is a native, and of the
time when he last came into the realm, and shall, within the
said fourteen days, transmit the same to one of his majesty's
secretaries of state, or, if in Ireland^ to the chief secretary of the
lord lieutenant.

By § 2. the master of every vessel arriving from foreign parts $ 2.
sliall immediately on arrival declare to the chief officer of cus-
toms at the port of arrival, whether there is any alien on board,
and shall specify the number (if any) on board, or who have
landed from his vessel, and their names, rank, Sfc, under penalty

Vol. I. N ' of

178 ALIENS.

of 20/. for every false declaration, and of 10/. for every alien
whom he shall have neglected to declare,
5 J, By § 3. every alien who shall, after the commencement of the

act. arrive in the kingdom shall deliver to the chief officer of
the customs at the port of debarkation any passport in his pos-
session, and declare in writing the name of the vessel in whicli
he shall arrive, and also his name, rank, 8fc. and the conntry
from whence he shall have come, and the place to which he is

going, and the name of the person (if any) in the realm to whom
e is known ; and if any alien shall neglect or refuse to deliver
up his passport, he shall forfeit 5/.; and if he shall neglect to
make such declaration, or shall wilfully make a false one, he
shall (by § 9.)) on conviction before two justices, forfeit 50/., or
be imprisoned not exceeding six months.

§ 4 & 5. By § 4 & 5. the officer to whom the passport shall be de-

livered and declaration made shall register the declaration, and
shall deliver a certificate thereof to the alien, and shall, within
two days, transmit the declaration and copy of the certificate
to the alien office, Westminster.

§ 6. By ^ 6. every alien shall, within one week after his arrival,

produce such certificate at the alien office, Westminster^ and
declare where he intends to reside, or, if the place to which he
intends to go is more than five miles from Westminster, shall
transmit such certificate and declaration by post to the alien
office, or, in case of neglect, shall be punished as above.

$ 7. By § 7. every alien shall, on the first day of January and

Jidy, or within a week therefrom, make a declaration of his
residence, and state therein at what place he intends in future to
reside, and transmit the same to the alien office, under the
penalties above mentioned.

§ 8. By $ 8. one of the secretaries of state may require any alien

to make a declaration of his actual place of residence, and of the
place at which he intends to reside in future, at shorter intervals
than those above mentioned ; and if the alien shall refuse, he
shall be punished as above.

§ 10. By § 10., on receipt at the alien office of any declaration in

the cases aforesaid, a clerk nominated by the secretary of state
shall, within three days, make out a certificate, setting forth tlie
name, rank, S^c. of the alien, and his place of abode, and shall
transmit the same by post to such alien ; and any alien being
by his own defeult without such certificate, or residing without
lawful excuse in any other place than that expressed in it, shall
forfeit 20/.

{For further provisions^ see the act,)^

*
(C 2) How far the Laws of this Country attach upon

Aliens.

1 Wooddes. A^ ^^*^"* whilst he resides here, is generally subject to our
379. Fost. Cr. laws, and owes a local and temporary allegiance to the sove-
reign,

(C 2) How far the Laws of this Country attach upon Aliens. 179

reign, by whose authority those laws are administered, and by Law is 5.
whom his person and property are protected ; consequently, if ' Hawk. P. C.
during such residence he commit an offence, which in the case 9 Ann c 16 '
of a natural-born subject would amount to treason, he may be Hob. 271.
dealt with as a traitor; and this whether his sovereign be in
amity or at enmity with us. My Lord Coke's position, therefore, s Inst. 4, 5.
that an alien enemy cannot be guilty of treason, must be taken
with this restriction, namely, where he invades this country, and
is taken in war : in which case, indeed, he is not punishable at
all, according to the course or by the rules of the municipal in-
stitutions, but is to be dealt with according to the law of nations
in martial affairs.

It is declared by statute 32 H. 8. c. 16. § 9. That every alien,
coming into the king's dominions, shall be bounden by and unto
the laws and statutes of this realm.

But a French prisoner of war, being indicted for privately Post. Cr. L.
stealing in the shop of a goldsmith and jeweller a diamond ring, 188. note,
which by statute 10 & 11 W. 3. c. 23. is an offence punishable Moliere's case.
with death, the judge who tried him thought it improper to i^arned^writer
proceed capitally upon a local institution, and therefore advised observes, the
the jury to acquit him of the circumstance of stealing in the shop, humanity of
and to find hira guilty of simple larceny to the value laid in the '^^ J"^se was
indictment.] ^ ' "^ at least more

-^ conspicuous

than the eoundness of the principle, as a point of mere law'. I Wooddes. 382.

II Aliens are subject to be tried here for offences committed on The King ▼.
the high seas, under the provisions of the 28 H. 8. c. 15. ; but it Depardo.
appears that they are not liable to trial by special commission, Aliens^are en-
issued under the S3 H. 8. c. 23. for offences committed on shore titled to be
in foreign countries. Where a Spanish prisoner of war entered tried by a jury
as a volunteer on board an East India company's ship, and, '(^ medietate
while remaining one of the crew of such ship, committed a man- "W^' „ ^!f

1 1 ^ • ^y • 1 1 1-1 1 . 6 (j. 4. C. 50.

slaughter, at Canton m China, where the ship lay, and was m- § 47,
dieted at the Old Bailey for feloniously killing and slaying, on
the 43 G. 3. c. 1 1 3., a case was stated and argued before the
twelve judges, on which no judgment was given ; but the pri-
soner was afterwards discharged. ||

[Aliens are comprehended within the statute 25 E. 3. c. 4. for 2 Hawk. P. C.
extending the benefit of clergy, according to a very old interpret- ^^n[ ^' ^'^oo
ation of that law. * ^'"Sy'P'

A resident alien, it hath been adjudged, is entitled to the be- Courteen's
nefit of a general pardon ; but, if he is not in the kingdom at the *^^^» ^^^' ^'°'
time of the promulgation of the pardon, he is not within the be-
nefit of it, for he is no otherwise a subject but by his residence
here.

Aliens are subject to, and shall have advantage of the statutes ^^ 21. Jac.s.
against bankrupts. ^' ^^' *' ^^'

The property of an alien resident abroad, consisting of stock 1 Atk, 19.
in the public funds, or other personal effects in this country, is llW^hat court
subject to the controul of the Court of Chancery, {a) ^^X the copy-

right of a foreigner. Delondre v. Shaw, 2 Sim. 257. Where both parties were subjects of
Denmark^monQy belonging to the wife was ordered to be paid to the husband, the law o( Den-
mark not requiring a settlement, Dues v. Smith, 1 Jac. 544.||

N 2 But

180

ALIENS.

Pi pen V. PipcPj
Ainbl. 25.
Burn V. Cole,
Jd.-ilS.

Mclan V. Duke
of Fitz James.
1 Bos. & Pull.
138.; and see
Talleyrand v.
Boulanger,
3Ve8.449.
De la Vega v.
Vianna.
1 Barn. &

But if an alien resident abroad dies intestate, his whole pro-
perty here is distributable according to the laws of the country
where he so resided : but the residence must be stationary, not
occasional, else the municipal institutions will not attach upon
the property.]

II Where an alien in a foreign country entered into a contract

which, according to the law of that country, did not subject his

person to arrest, it was held by the Court of Common Pleas

{Heath J. dissent.), that he was not liable to arrest upon it in this

country.

But Lord Ellenhorongh in 2 East. 445. expressed his dissent
from this doctrine, and it has lately been overruled by the Court
of King's Bench, who have decided that a party may be arrested

Adolph. 284.; jj^ ^j^jj. country for a debt contracted in a foreign country, though

& C. 658. ' ^^ ^^^ of s\iic\\ country do not allow arrest for debt.

1 Jac. & VV. 405.

.78 G. .5.0. 50. By 38 G. 3. c. 50. § 9. it was enacted, That aliens in this

§9. 1 he pro- country, who had quitted their countries by reason of the revo-

Visions oi tnis . * ^

act were re- lution and troubles in France, should not be liable to be arrested

pealeil, but for any debt or cause of action contracted while such aliens were

were re-enact- not within the dominions of his majesty ; and in case of any such

by subse- arrest, the alien should be discharged by his majesty's courts, or
quent acts, , .' , . . rs j j j '

which were ^Y ^ J""ge m vacation,
last continued by 3 G. 4. c. 37, and they are now expired.

Sinclair v. Charles Philippe, Monsieur de France (afterwards Charles the

Philippe Tenth), having contracted with Sinclair, at Coblentz, for raising

Monsieur de troops for the service of the French princes, was held to bail in
France, 2 Bos. England for money paid here, and on an account stated here ;
but the Court of Common Pleas held, that the money paid, and
the adjustments in England, were referable to the original con-
tract abroad, and that the case was within the statute, and they
discharged the defendant on a common appearance. ||

(D) What Actions Aliens may maintain ; and therein
of the Difierence between an Alien Friend and one
whose King* is at Enmity with ours.

& P. 563.

Co. Lit. 11 9. b.

Anders. 25.
Dyer, 2. b.
[ (fl) And this
though resi-
dent abroad.
Dyer, 2. b. But
in such case
the courts of
K.B.andC.P.
require secu-
rity for costs;

^N alien friend may have personal actions (a), but not real ; an
alien enemy shall not have real, personal, or mixed action.
The reason why an alien friend is allowed to maintain personal
actions is, because he would otherwise be incapacitated to mer-
chandize, which may be as much to our prejudice as his ; but,
as to the allowing of him to maintain real actions, there is no
reason for it, because there is no necessity that he should settle
amongst us : an alien enemy (6) is disabled, from the prejudice
that may accrue to the king and kingdom, if he were allowed to
not. however, niaintain any actioj.

"u''' S J* ^j' "'•, ^ '^^"" ^- 267. 362. 2 H. Black R. 1 18. 4 Term R. 697.] (3) But
who &hall be said an alien enemy, and how it shall be tried, vide 9 Co. 51. a. That it shall be
tried by the record m Chancery, whether his prince is at peace or enmity with ours, for every

leaguej

(D) What Actions Aliens may maintain^ 8^c. 131

icapue is of record ; and Cro, El. 142. Owen, 45. That open acts done b}' his prince are
sufficient, and that it is not necessary that a war be proclaimed. Turks and Infidels are not per-
petui inimici, nor is there a particular enmity between them and us ; for the difference between
their religion and ours does not oblige us to be enemies to their persons. Salk. 46. j)l, 2. said
to be the words of L. K. Littleton. 1 Atk. 51. Vide Skin. 167. 204.

A merchant stranger shall have an action for saying he is a Yelv. i98.

bankrupt, for by law he may have personal actions, and these f uer'cote and

1 5 J* • ■ 1- ]•, • u- 4. 1 Morison.

words tend to impair his credit in his trade. g^j^.^. J34 gn

[By an express law, viz. St. 31 H. 6. c. 4. redress is pi'ovided for aliens who are injured by the
king's subjects on the sea, or in any part of the realm. 2 R. 2. s. 2. 3 Bulstr. 28.]

II An alien enemy, father of a child born in England of an The King v.
English wife, is entitled to the custody of the child ; and the De Manneville,
Court of King's Bench will not interfere with his right, unless ^^^^^221.
they see reason to believe that he intends to abuse it, by send-
ing the child out of the kingdom, or in some other manner, [j

An alien friend, merchant, may upon a statute extend lands, 1 1 Ed. 3. Rot.
which the king shall not have upon office, and for which he ?'^- I^yp'"* 2.b
shall have an assize in case of ouster ; for the main end andde- *" "f^rg*"*
sign of both the statute-staple and merchant was to promote and
encourage trade, by providing a sure and speedy remedy for
merchant strangers, as well as natives, to recover their debts at
the day assigned for payment.

An abbot, prior, or prioress alien shall have action real, pei:- Co. Lit. 129,
sonal, or mixed, for any thing concerning the possessions or a. b. Palm,
goods of their monastery here in England, because they sue in ^^' ^-P- ^^'^
their corporate capacity, and not in their own right to carry the p A^u^* ^'*u '
effects out of the kingdom, [a) sanie pnnciple

ft hath been holden, notwithstanding the statutes of 5 R. 2. c. 3. 7 R. 2. c. 12. and 1 H. 5. c. 7.
that an alien, incumbent on an ecclesiastical benefice, may maintain an action concerning the
glebe, tithes, &c. Hughes's Parson's Law, c. 10. cites Dr. Seaton's case, M. 8 Jac. 1. C. B.]

So an alien friend may be an administrator, and shall have Cro. Car. 8.

administration of leases, as well as personal things, because he ^ Upwell

hath them in another's right, and not to his own use. Vent. 417. S.

C. cited.

But it has been long doubted, whether an alien enemy may Cro.Eliz. 142.

maintain an action as executor : for on the one hand it is said, ^^"' ^^'j ,

that by the policy of the law, alien enemies shall not be permit- office of Exe-

ted to bring actions for the recovery of effects which may be cutors, 15.
carried out of the kingdom, to the impoverishment of ourselves,
and enriching of the enemy ; and therefore public utility must be

preferred to private convenience : but on the other hand it is said, Mollov, 870.

that these effects of the testator are not forfeited to the king by Cro. Eliz. 683.

way of reprisal, because they are not the alien enemy's, he being ^"- ^•''^•

to recover them for others: and if the law allows an alien enemy if^-^^'^lt^'^^^'

\ rr 11 T /• • 1 • 11 okm. o/O.

to possess the etiects as well as an alien friend, it must allow yidf. supra,

him power to recover them ; and if it were otherwise, it would be tit. Abatement

a prejudice to the king's subjects, who could not recover their CB), 3.

debts from the alien executor, by his not being able to get in the

assets of the testator.

II Not only an action cannot be maintained by an alien enemy, Brandon v.

but an action lies not in favour of one, though the plaintiff' on ^,^^^'"'

N3 tl^^ 6rennR.23.

ALIENS.

M'ConncU v.
Hector, 3B08
&P. 115.

Omealey v.
Wilson,
1 Camp. 481.
Roberts v.
Hardy, 3
Made ft S.

533.

tlie record be a subject of Great Britain. Thus, where an

action was brought on a policy by the English agent who

effected it, to which the defendant pleaded that the persons

interested (whose interest was alleged on the record) were

aliens born, and that before the ship sailed their sovereign was

at open war with the king of Great Britain, the plea was held

good ; and a replication, that the persons interested were indebted

to the plaintiff in more money than the value of the property

insured, was held insufficient.

Flindt V. But where the plaintiff sued as the British agent effecting the

Waters, 15. policy, and the defendant pleaded the general issue, and it

East, 260.; and appeared that the parties interested only became alien enemies

see 13 es. . j^ffgj, ^j^g j^gg jj^ppened, but before the suit; it was held, , that

the defendant could not take advantage of that fact by a plea

in bar, since the disability was only temporary, and might be

removed by the war ceasing.

An Englishman, residing and carrying on trade in an enemy's
country, is regarded as an alien enemy, and disqualified to sue.
And the mere residence, without trading, would seem to
take away his right to sue.
De Luneville v. Phillips, 1 New R. 97.

However, where an Englishynan went to America with his
family immediately after a declaration of war by that country
against Great Britainy but before such declaration was known
in England, and an act of congress enabled British subjects to
quit America within six months from such declaration, but he
remained in that country, but did not trade ; it was held, that
this mere residence did not, under the circumstances, amount to
adhering to the king's enemies, so as to incur the disability of
alien enemy.

If an alien is carrying on trade in an enemy's country, he is
it seems disabled to sue, notwithstanding he is resident in such
country, as consul of a neutral state.

If a contract be made with an alien enemy while he is such, it
cannot be enforced in England, even after peace is restored.
Thus, where A.y an alien enemy having goods in the hands of
B, in England^ drew bills upon him, which B. accepted on
; account of the goods, and A. indorsed them to C, a British
subject residing in an alien's country, who did not sue till
after peace was made ; it was held, that as A could not get at
his funds in this country directly, neither could he do it by
indorsing the bills to a third party, who must have been cogni-
zant of his object, and the plaintiff accordingly could not
recover.

Where bills were drawn by one British prisoner of war, de-
tained in France, in favour of another on a British subject in
England^ and indorsed by the payee to a French banker, an
alien enemy, who sued on them after the restoration of peace ; it
was held by the Court of Common Pleas, that the action was
sustainable under the peculiar circumstances of the case, since

the

Atbrecht v.
Sussmann,
2 Ves. & B.

323.

Willison V.
Pattcson,
7 Taunt. 439.
and see Bran-
don V. Curling,
\ East, 410.

Antoine v.
Morshead,

6 Taunt. 237.
1 Marsh 558.
S. C. ; and see
Daubuz V.
Morsheatl,

(D) What Actions Aliens may maintain^ ^c.

183

the bills were not drawn in favour of an alien enemy, but by 6 Taunt. 332.

one British subject in favour of another, upon a British subject ; ■^"'P' Bous-

and that the indorsement conveyed a good title to the plaintiff, ^^^cker.isVes.
on which the king might have sued during the war ; and he not
having so done, the plaintiff might sue after the proclamation of
peace.

The plea of alien enemy is a bar to a bill for relief in equity, Albrecht v.

as well as to an action at law : but it would seem not sustain- Sussmann,

able to a mere bill for discovery ; for, as an alien may be sued Ls ^
at law, and may have process to compel the appearance of his
witnesses, so he may have the benefit of a discovery.]!

If an alien enemy comes here sub salvo conductu^ he may main- Salk. 46. pi. 1.

tain an action ; so if an alien amy comes here in time of peace Wells and

per licentiam domini_ regis, as the French protestants did, and Williams. Ld.

lives here siib protedione, and a war afterwards happens between Fost™Cr^L,aw

the two nations, he may maintain an action, for suing is but a ise. Bro. tit*,

consequential right of protection {a) ; and therefore an alien Propertie, p.

enemy, who is here in peace under protection, may sue a bond ; ^^- ^"■) But an

aliter of one commorant in his own country. wtfo has^sudi
protection, must plead it. Faresl. 1 50. Sylvester's case. Ld. Rayra. 283. [But if alienage
simply be pleaded, it is not necessary to reply, that the plaintiff ia not an alien enemy. 2 Stra.
1082.]

[It hath been heretofore holden, that an alien enemy may Record v.
maintain an action in this country for the recovery of a right Bettenham,
claimed to be acquired in actual war; but that opinion hath been 3 Burr. 1734.
since over-ruled, and it hath been determined in the Exchequer ^^lack R. 563.
Chamber, that by the municipal law of this country no such sui t Blackburn
can be supported, Dougl.6i9.

Anthon v. Fisher, Dougl. Ad. 30.

An alien enemy, prisoner of war, is not entitled, under any Anon. 2 Black,
circumstances, to his discharge upon a habeas corpus.'] ^' *^^'**

II Whether an alien enemy born, who is a prisoner of war, can
maintain an action in the courts here, does not appear to have
been decided, though judges have expressed strong opinions in
the affirmative. In a case where the question was raised, no
judgment appears to have been given. But where a native of a Maria v. Hall,
state in amity with Great Britain was taken prisoner while 1 Taunt. 33.
serving on board an enemy's ship, and by the authority of the y B^nnat?ne
king's officer was put on board 2l British merchant ship, then i'bos. & Pull,
in want of hands, and did his duty like the rest of the crew on 163.
the voyage to Great Britain ; it was held, that he might main-
tain an action for wages as a seaman for the voyage. ||

[A foreigner is allowed to put in his answer to a bill in equity Simmonds v.
in his own language, but a sworn translation must be also filed ^^^"^i

-"•it. ?,«-*

Interrogatories for the examination of witnesses who are Lord Belmor^
foreigners must be in £«g//5^ / and being afterwards translated, Jgr'cf^ch"*
their answers must be translated by sworn interpreters.] r, 9o'.

N 4

(E) Of

18* ALIENS.

(E) Of pleading Alienage.

T F one born in Jersey, or elsewhere within the king's obedience,
Co Lit. 129. b. •■- brings a real action, and the tenant pleads that the demandant
47 alceb 98 '^ "" "^'^" \)oxn under the obedience of the French king, and
Leon. 78, 79. ' out of the ligeance of, 8^c. the demandant may reply, that he
C'arter, 50. was born at such a place in England^ within the king's alle-
Rast. Ent. 605. gjance, ^x. and such hath ever been the manner of pleading in
la) Q«.'lfthc such case, (fl)

best method would not be, to say, born within the king^s obedience, viz. at, &c. the venue laid
by the plaintiff in hiis declaration ?

7 Co. 1. 9. in ^n assize tempore Jac. 1. the defendant pleaded, that the

Lit. Rep. 26. plaintiff was born apud E. infra regnum Notice ac intra ligean-

tiam didi domini regis regni sui Scotia^ ac extra ligeantiam dicti

domini regis regni sui Anglice ; and this was holden no good

plea, because it referred ligeance and faith to England, and not

to the king.

Sid. 357. Free- In debt on an obligation, which was for payment of rent

man v. King, reserved by lease for years ; the defendant pleaded the 32 H. 8.

c. 16. and that he was an alien artificer, <^c.; the plaintiff replied

that he was no alien artificer ; but, having laid no place where he

was born, the replication was held bad.

Carth. 302. '^^^ defendant pleaded in abatement, that the plaintiff was an

Nicholas v. alien enemy, born in such a place in France ; the plaintiff replied

Powlct. But that he is indigena, and born at such a place in the kingdom

^'^s '^H ^"^ ^^ England, et non alienigena modo et forma prout, &c. et hoc

561. Asht. 11. P^^^^ ^^°^ inquiratur per patriam : upon demurrer to this repli-

the like repli- cation it was holden to be ill; for that the plaintiff" did not rely

cations. If the upon the first part of it, that he. was born in England, and so

clmclud d'h" *^°"*^1"^^ ^i^^ ^^ averment, that an issue might be taken by the

replication Other side, viz. that he was not born in England, and that this

with an aver- matter might be triable by a proper visne ; but here he hath put

ment only, the alien or not alien in issue, viz. non alietiigena modo et forma,

«^^^r^*^''*"^*^' which cannot be tried for want of a visne; and therefore judg-

non alienwcna, . -,11..,,,,,, J o

had been only "'^"* ^'^^ given that the bill should abate.

Mirplusage, and helped upon a general demurrer; so resolved, Garth. 265. Brodeck v. Briggs,
yide Comb. 212.

p^^^'^ooo Where alienage is pleaded in abatement, and the plaintiff'

per H^i C.J ^^Pl'^s indigena, he may either take issue, or conclude et hoc
paratus est verificare ; but if in bar, he must take issue; and this
is the reason of the difference in the two precedents in Rastal.
Bro. tiL Deni- If alienage be pleaded to an alien in league, it must be
Rit.\Iu.252. P^^^'l^^ in abatement or disability of the plaintiff; but if it
605. CarL 49. ^^ ^^ ^^ vWen enemy, it may be pleaded either in abatement or
Co. Lit. 129. in bar to the action, because it is forfeited to the king as a re-
a.b.(fl)Notto prisal for the damages committed by the dominion in enmity
be pleaded to a ^j^h him. (a)
personal action ^ '

without alleging the plaintiff to be an enemy. 2 Stra. 1082. See 12 Mod. 125. [In an action
by an alien enemy for a right acquired in actual war, the defendant, it seems, may avail him-
Ta Sni^ hwT*^^°u ^'f, ^'«"a§e without specially pleading it. Anthon v. Fisher, Dougl.
AO. JO.J pwhen the plaintiff u an alien enemy at the time of the cause of action arising,

this

AMBASSADORS. 185

this may be given in evidence on the general issue, or pleaded in bar; but when he became
so subsequently to the accruing of the cause of action, it only goes to his disability to
sue, and must be pleaded in abatement. Doug. 649. note 132. 6 Term R. 24. 15 East, 260.
3 Camp.R. 152. The courts will not in general allow the plea of alien enemy to be pleaded
with any other plea. 1 Bos. & Pull. 222. 2Bos.&Pull.72. 12East,206. loEast,326. And the
plea being disfavoured, must aver that the plaintiff was born in a foreign country at enmity with
this country, and came here without letters of safe conduct. 8 Term R. 166. If the plaintiff
being an alien amy at the commencement of the suit, afterwards in the course of it becomes an
alien enemy, and this appears on the record, judgment will be given that he cannot further
maintain his suit. De Bret. v. Papillon, 4 East, 502.1|

[Alienage cannot be pleaded to a scire facias on a judgment ; West v. Sut-
Ibr the plaintiff having been admitted to be able to recover judg- ^"' ^ ^°5"
ment, cannot be disabled from having execution upon it by mat-
ter which was precedent to it]

II And where the plaintiffs had become alien enemies since the Vanbrynen v.
verdict, the court refused on application to stay the judgment ^iVilson,9East,
and execution, saying, if the defendant had any remedy at law, ^^^*
he might avail himself of it. II

AMBASSADORS.

A N ambassador (a) is a person sent by one sovereign prince {b) ^^^ Difference
to another, to transact in the place of his sovereign such between am-
matters as relate to both states. The manner of appointing and bassador ordi-
receiving public ministers, their duty, power, and privileges, 8^c, nary and ex-
being chiefly regulated by the civil law, or law of nations, I must ]vfolloy" b7i. " '
refer to other books for those matters, and shall here only insert c. x. An
what seems most worthy of notice in our law books ; observing agent repre-
that our law herein pays the greatest regard to rules prescribed se^ts the affairs
by the civil law and the law of nations. ambassador

the grandeur of his master. Molloy, ibid, {b) By the law of nations, none under the quality
of a sovereign prince can send ambassadors. Ibid. And it is said by Lord Coke, that there
can be no ambassador without letters of credence from his sovereign to another that hath a
sovereign authority. 4 Inst. 153. But the electors and princes of the empire send or receive
ambassadors, touching matters which concern their own territories. Molloy, ibid. And so
the Hans towns, being free imperial cities, have the same regalia by prescription or grant.
Ibid. But a king deprived of his kingdom and royalty, hath lost his right of legation. Molloy,
bk. i. c. X. § 5. i7i margin. ||Grotius states the rule that none but stimmi imperii compotes
inter se can lawfully send ambassadors, but admits exceptions in the case of civil wars, when
a nation is so divided that it is doubtful where the jus imperii resides, or where two claimants
contend with doubtful right for the succession. De Jure B. et P. lib. ii. c. xviii. § ii. 3. ;
And Bynkershoek, in such cases, ascribes the power of sending embassies to that faction
which has the rei agendi potestas, and therefore joins with Grotius in approving the censure of
Tacitus, Histor. lib. iii. c. Ixxx. on the violence offered by Vespasian to the embassy of Fitelkusy
since V itcllius a.n6. t\\G senate then held the chief power of the state; — but had Vespasian
sent ambassadors to Vitellius they would, says Bynkershoek, have been only the messengers of
rebellious subjects, who have clearly no authority, according to the law of nations, to send
embassies to their sovereign, as he shews with reference to instances in modern history.
Bynk. Quasst. Jur. Pub. lib. ii. c. iii. A sovereign dc facto enjoys this right without reference

18C AMBASSADORS.

to his title. IbuL And this author extends it to municipalities and provinces having compe-
tency to transact those matters which their embassy concerns. He even sneers at the
punctilio of Queen Elizabeth in refusing to receive an epibassv from the Duke of Alba,
the object of the embassy being to obtain the restoration of a sum plundered. Jbid.
p 207 ; and see Wicquefort Ambassadeur, lib. i. § 2.1| If sent from a kmg or absolute
potentate, though in his letters of credence he is termed an agent or nuncius, yet he is an
ambassador or legate. 4 Inst. 153. Ambassadors were sent to the pope, being a temporal
prince, and also his ambassadors received here, who were sworn not to attempt any thing
prejudicial to the king or kingdom. 4 Inst. 156.

Hob. 78. 113, An ambassador cannot, as procurator, exhibit a bill in our
114. Don Die- courts for a certain number of his fellow subjects, without an
go Servienti authority from them ; for every procurator must sue in the name
Sprnd^kmn- ^ of the principal, and cannot be such without his allowance ; nay,
bassador, and the king cannot make a procurator for all his subjects, without
Sir Richard (heir consent, nor would a release, sentence or discharge against
Bmgley. ^^^^ ^ ^^^ ^^ ^ discharge against the principal : also the office

of an ambassador doth not imply a private procuration, but for
the public ; and not for a particular subject, otherwise than it
concerns the king and his ministers to protect him in foreign
kingdoms in nature of a negociation of state ; and therefore,
though he may prosecute and defend for a private subject at
the council-table, which is a court of state, yet when he comes
to settled courts he must observe the essential parts of their pro-
ceedings.
4 Inst. 152. I" ^^ bishop of Ross's case, ann. 13 Eliz. the questioi>being

Molloy, b. 1. - an legatuSi qui rehellionem contra principem ad quern legatus con-
0,10. $9. S.C. citas, legati privilegiis gaudeat, et non ut hostis pcenis subjaceat, it
cited, and said, ^^g resolved he had lost the privilege of an ambassador, and was
that ambas- i • ^ , • i ^ r &

sudors cannot, subject to punishment.

by the law of nations, be defended when they act against the state, or person of the king with
whom they reside; and vide 3 Bulst. 28. and Roll. Rep. 18S. in which last book, the king's
attorney makes a difference between a conspiracy to kill the king and other treasons com-
mitted by an ambassador. — — . |[0n the much contested question as to an ambassador's
criminal responsibility to the courts of the country where he resides, the authorities of our
common law are not quite in accordance with the writers on the law of nations, though the prac-
tice of this country has, in almost all instances, conformed to the principles laid down by the
latter. The jurists who treat of the^'zM gentium, with one consent allow to the government to
which the ambassador is sent, all such proceedings against him in case of his criminal machin-
ations against the state as are justified by principles of self-defence or preservation. If he
engages in hostile attempts with open force, he may be repelled with force as an open enemy,
and his life may be taken, if necessary, to suppress his plots. If he is detected in secret con-
spiracies, he may be arrested and examined, and his papers seized, and his person confined as
k)n| as the necessity of the case requires it. But when the danger and necessity are past,
or in cases of crimes not affecting the state (however atrocious), where such danger and
necessity never exist, these writers are unanimous in asserting the ambassador's immu-
nity from all proceedings for mere purposes of punishvient; for as Grotius expresses it,
" securiioi kgatorum utUitati qucs ex poena est pr<Eponderat :" besides that the deserved
punishment may be obtained through the medium of the ambassador's own sovereign, or if he
refuses it, may be a just cause of war. Grotius de Jure B. et P. lib. ii. c. xviii. de legatio-
num jure. Vattel, b. iv. c. vi., enforces the same principles by cogent reasonings drawn from
the necessity of an ambassador's general exemption from municipal law ; and Bynkershoek,
de Foro Legatorum, c. xvii., xviii., xix. ransacks ancient and modern history for examples
bearing on the question, which certainly shew the preponderating usage of nations, ancient and
modem, to be consistent with the principles of the above writers ; though some instances of
punishment are not wanting, as that mentioned by Livy. lib. xxv. c. vii. of the Tarentine envoys,
and by Sallust. Bell. Jugurth. c. 55. and others. On the other hand, among our own text
authorities. Lord Coke broadly asserts, (4 Inst. \ 53. post. p. 188.) that an ambassador may be
tried as a private alien for treason, felony, adultery, or any other crime against the law of nations
— a doctrme which would render him liable for all such offences against municipal law as are mala

AMBASSADORS. 18^

inse, including every criminal fraud. Lord Coke cites no authority for his position, which is quite
collateral to the case of Pallache, of which he is then treating. Sir Matthew Hale, 1 Hist.
PI. C. 99. expresses himself doubtfully as to an ambassador's liability to punishment as a traitor
for treasonable machinations, but "holds him clearly amenable for other capital offences, as
rape, murder, &c. on the technical ground that the indictment runs contri pacem regis only,
and not contra ligeanticB sius debitum. Foster is clear that, as to state crimes, ambassadors
are to be considered at worst but as enemies subject to the law of nations, never as traitors
subject to the municipal law, unless, perhaps, in case of attempts against the king's life
— a distinction also adopted by Blackstone, b. i. c. vii., upon the authority of a state-
ment of Sir Francis Bacon as counsel, in 1 Roll. Rep. 185. and State Tri. vol. ii. p. 881.
Foster, however, is clearly of the opinion of Lord Hale with respect to murder and other
offences. The only instance which appears in our books in accordance with these doc-
trines, (for Pallache's case, 4 Inst. 152, and 5 Bulst. 27. is no authority one way or the
other, since whether an ambassador or not (which was doubtful) his offence did not
amount to piracy, and therefore he was not triable,) is that of the Portuguese ambassador's
brother, Don Pantaleone de Sa, who was tried and beheaded for murder during the protec-
torate 1654. (See the case at length, Stat. Tri. v. 5. 462.) This person, as appears from
the account of Doctor Zouch one of the commissioners appointed to try hira (see the preface
to his tract Solutio qucestionis de Legati delinquentis competente Judicio, B Sta. Tri. 482.) was
not himself invested with any ambassadorial character, though Hume, v. vii. 237. erro-
neously states him to have been joined in the commission with his brother. The case is
not therefore an example of the punishment of an ambassador; though it must be ad-
mitted that, as part of the ambassador's retinue, the individual would, according to
Grotius, Vattel, and Bynkershoek, be entitled as a comes legati to the same immunity as the
ambassador himself, — and the threats of violence by which CVo7WM;e// compelled the ambas-
sador to deliver him up, were contrary to the express authority of Grotius, that a person
in the retinue of an ambassador committing the gravest delinquency ought only be de-
manded at his hands, but not taken by force. Lord Hale mentions the case in support
of his dpctrine above stated : — neither Foster nor Blackstone condescend to notice it.
Bynkershoek mentions the fact without comment, de Foro Legatorum, c. 17. Claraidon
calls it an " exemplary piece of justice," which it might be, and nevertheless be con-
trary to the voluntary law of nations. Hume, V. vii. 237. and Burnet, Hist, own Times,
vol. 1. consider it as a violation of that law; and though it appears to have been quoted by
the Emperor of Germany as a precedent to justify carrying off an offensive plenipotentiary
from a congress at Cologne (5 Sta. Tri. 486.), yet, perhaps, considering the period and cir-
cumstances of the case, and the weak condition of Portugal, which was then purchasing a
peace of Cromwell, it hardly affords a very authoritative decision even as to the responsibility
of an ambassador's attendant for an atrocious crime against natural law ; and as to the case of
an ambassador himself, or of a crime against the state, it clearly affords no precedent at all.
Vattel, ubi sup. § 1 24. mentions an instance from Sully's Memoirs, v. vi. c. 1 . of a French
gentleman in the suite of the Duke de Sully (then Marquis de Rony) ambassador in Eng'
land, who, having committed a murder, was tried by the ambassador and some gentlemen
of the embassy, and found guilty, and sentenced to lose his head, and afterwards delivered up
to the English for execution — a proceeding which Vattel appears to approve, since, though
he admits the right of trial, he pronounces an ambassador to have no power to execute a
criminal in the country where he officiates. The case of the Bishop of Ross in the text is
merely an opinion of the civilians consulted, for no judicial proceedings were taken against
the bishop, who was 'sent to the Tower, and afterwards ordered to depart the kingdom.
5 Sta. Tri. 501, 502. Similar instances of restraint and dismissal (but none of punishment)^
have occurred from the earliest periods of our history down to the seizure of the Count
Gyllcnberg the Swedish minister, and his papers in 1716 (see them collected, 5 Stat. Tri. 492.);
and they fall strictly within the principle of prevention, as stated above from the writers on
the law of nations. Even Cromwell himself, when his life was conspired against by the French
minister De JBas, who refused on the ground of privilege to answer interrogatories of the
council, contented himself with ordering the minister to depart the kingdom in forty-eight
iiours (see the case stated from Wicquefort and Thurloe in 5 Sta. Tri. 512.), as Queen Elixa-
beth had done in the case of a similar conspiracy. See Camden, Eliz. Ann. 1587.||

If A. is sent as ambassador of the king of Morocco to the Slates, 4 Inst. 152.

and by them accepted as an agent, and there being war betvi^een p^f,"^Tf ^ '"

the king of Morocco and the king o^ Spain, the king of Morocco bytheCh'S

makes a commission to A. to take SjJaniards, and their goods ; Master of the ]

and

188 AMBASSADORS.

Rolls, and the and the king of England grants him letters of safe conduct as a
Judge of the public minister, and the States license him to levy men, to furnish
Admiralty, up- gj^ipg^ ^.^, . ^nd there being a league between England and Spain
t°o"them byX and England and the States, and war between Spain and the
Lords of the States, A. takes at the Canaries a Spanish ship laden with goods.
Council upon and by stress of weather is driven to Plymouth, he shall not be
the prayer of ^^.j^j ^ ^ pirate here {a) ; for by the law of nations an ambas-
tSoMo^'"' saJor «"gl^t to be safe and sure in every place. (Z;)
proceed ajrainst him as a pirate upon the stat. 28 H, 8. c. 15. Roll. Rep. 175. S. C. cited.
5 Bulst. 27,28. S. C. cited, (a) But per Roll. Rep, it was agreed by the civilians, that
he ought to proceed civilithr for the goods, because in solo amid; and 3 Bulst. 29. A
suit beinf in the Court of Admiralty against several merchants that had bought goods, the
civilians held, because they were bought in solo amid, proceeding might be for them in
the Court of Admiralty ; and it is said, that accordingly the court denied a prohibition :
But, per 4 Inst. 154. though this was the opinion of some of the civilians in Palache's
case, yet the contrary had been resolved, 2 Jac. 1. ||(5) But Pallache's case seems to have
been decided on the ground that, whether he were an ambassador or not, his acts did not
amount to piracy, because there was enmity between his master the King of Morocco and the
kin* of Spain, and one enemy cannot be a felon for taking the goods of another enemy.||
4 Inst. 15-5. If a man that is banished is sent ambassador to the place from

|j(c) But it IS which he is banished, he cannot be detained or offended there, (c)
clear that the ^

sovereign of such individual might refuse to receive him as an envoy; and if he afterwards
came into the country, he might be dealt with as a subject. In France, the government
refuses to admit native subjects as ministers of foreign powers. Vattel, b. iv. c. viii. s. 112,;
and in 1681 the states-general oi Holland passed a decree, refusing to receive as ambassador
or minister any native subject, except on condition of his retaining his character of subject,
both as to civil and criminal jurisdiction. Bynkershoek, de Foro Legatorum, c. xi. And

1 believe the practice of the British government is against receiving native subjects in such
capacity; it seems they refused to receive Sir B. Thompson Count Romford, as minister
from the elector oi Bavaria. 5 Sta. Tri. 504, If a sovereign, however, does admit such sub-
ject as an envoy, and without any condition expressed, Vattel, ubi supra, considers that his
character of sulject is suspended, and that he is entitled to all the immunities of an am-
bassador.||

2 Vern. 317. A bill was exhibited in Chancery against one, then ambassador
l*ilkington v. at the court of Spain : an order was obtained, that all proceedings
Stanhope. should cease until his return from his embassy ; and, on motion to
was'beld trea- discharge the order, it was agreed on debate, that a protection
son to kill the lies for an ambassador, quia prqfectwnis, or quia moratwus, and
king's am- that at law he may cast an essoin for a year and a day, and may
^'Tnst'T ^e ^^^^^"^^^^^ renew it if occasion continues ; and the court ordered
Co. Lit. 130. t'^^ proceedings to stay for a year and a day, unless the defendant

should sooner return into England.
4 Inst. 153. It a foreign ambassador (being ^;ro-n\r) committeth a crime

Mollov, b. I which \s contra jus gentium, as treason, felony, adultery, <^c. he
Same rule ^°^^^ ^^^^ privilege and dignity of an ambassador, and may be
cited. Roll, punished here as any othr private alien, and is not to be re-
R, 175. Same manded to his sovereign but of courtesy, id)
rule agreed by

thcciviliaus. So,3Bulst.28. Hawk. P. C. 51. S. P. Post. Cr. L. 187,188. [In the case of the King
agamst Guerchy, the attorney general, under the direction of the Court of K. B., grantetl
a noli proscqxa on an indictment against the French ambassador for an attempt to assassinate
lA-D'Eon. It does not appear from the report whether this direction was given upon the
naked ground of the defendant's protection from his character as ambassador, or whether the
judgment of the court were not influenced by the special circumstances of the case, which
induced a suspicion that the prosecution wa"s a cross calumny upon the defendant, and
instituted and kept on foot merely for the purpose of defaming him. 1 Black. R. 545.]
11(a) See note on this subject, suprh^ p. 186.||

So,

AMBASSADORS. 189

So, upon contracts which are good Jure gentium, he must answer. 4 j^gj j^^

But in Molloy, b. i. c. x. § 16. it is said, that most certainly by the civil law, his moveables,
which are accounted an accession to his person, cannot be seized on as a pledge, or for pay-
ment of debt, though by leave of the king or state where he resides ; for all coercion ought to
be far from an ambassador, as well that which touches his necessaries as his person : if, there-
fore, he hath contracted a debt, he is to be called upon kindly ; and if he refuses payment,
letters of request are to go to his master, so that the same course may be taken with him as
witli debtors in another territory ; and notice is taken of the opinion of my Lord Coke, which
seems to the contrary; and 3 Bulstr. 28. it is agreed by the civilians, that the person of an
ambassador cannot be arrested. [An ejectment brought, and left at the house of the
ambassador, conceived no breach of privilege in the case of Mons. Colbert for York-house.
M. 28. Car, 2. B. R. Molloy, b. i. c. x. $ 15. in margin.] ||It is not very clear what Lord
Coke, in the passage in the text, intends by contracts good jure gentium. All the authorities
on the law of nations, and the almost universal practice of European states, pronounce public
ministers free from civil proceedings for debts and contracts, ,&c. in the ordinary courts,
unless in case of ministers trading. See Grotius de Jure B. et P. lib. ii. c. xviii. § 9, 10.
Bynkershoek de Foro Legatorum, ex. xiv. Vattel, b. iv. c. viii. And this was the rule of our
common law before the statute of Anne, which is only declaratory. Com. Dig. Ambassador (B).
Ca. temp. Talbot, 280.||

But if a thing be only malum 'prohibitum by act of parliament, 4 Inst. 155.

private law or custom of the realm, and not malum in se jure gen- Molloy, b. i .

tium. nee contra jus "entium, an ambassador residing here shall ^" ^' ^\
' u o ' o same rule

not be bound by it. cited. Roll.

R. 175. The same rule agreed by the civilians. |jLord Cohe, in the passage in the text, must,

it would seem, be understood to mean that an ambassador is not amenable to the ordinary

tribunals of the country for breach of mere positive institutions ; for that he is bound by them,

and held by the jus gentium to observe them, clearly appears from the writers on that law.

Vattel lays it down that his independency does not excuse him from conforming to the laws

and customs of the country in all his external actions, so far as they are unconnected with the

object of his mission and character; and he instances the cases of prohibitions to pass in a

carriage near a powder magazine, or over a bridge, or to inspect the fortifications of a town,

which an ambassador is bound to respect. Vattel, b. iv. c. vii. § 95.1|

And now by the 7 Ann. c. 12. it is declared, " that all writs ^ p^^^ ^ j^
" and processes that shall at any time be sued forth or prose- (qj a certifi-
*' cuted, whereby the person of any ambassador, or other public cate that the
" minister of any foreign prince or state, authorized and received person was a
*' as such by her majesty, her heirs or successors, or the do- n^^ooj^^^" '
** mestic servant of any such ambassador (a), or other public Barnes, 370.
" minister, may be arrested or imprisoned, or his or their goods On motion to
" or chattels [b) may be distrained, seized, or attached, shall be supersede a
" deemed and adjudged to be utterly null and void. t'his'^rtatute

the court held, that it was not necessary to shew that he actually lived in the house, but
that he must shew the nature of his office, that the court may judge of it; also that he is
not such a one as comes within the de!=cription of any of the statutes against bankrupts. Fitzgib.
200. 2Stra. 797. Ld.Raym. 1524. Ca. tem. Hardw. 3,4. 3 Burr. 1677. See 10 Mod. 4, 5.
[He must also swear to the actual performance of the service. 3 Burr. 1731. But where one
swore positively to an actual engagement as English secretary to the Bavarian minister, and to
the actual performance of that employment, the Court of K. B. thought themselves bound to
allow his privilege, though it appeared that he had formerly been a trader, and there were severtd
other suspicious circumstances. 3 Burr. 1478. Lord Mansfield was clear, that an officiating
land-waiter at the custom-house could never be esteemed a bona fide domestic of a foreign
minister. I Burr. 401. Nor can a purser of a man of war. 3 Wils. s.^. Nor a trader residing
at his own house, his supposed master being abroad. Barnes, 374. Nor can an ambassador
take one into his service for the purpose of screening him from his creditors. 3 Burr. 1676.
Therefore, the person claiming privilege must swear that he was in the service at the time of
the arrest. 4 Burr. 2015. Qu. Whether an ambassador can retain one in the character of
physician? Ibid. A secretary to a foreign minister is privileged, though his name be not
registered in the office of either of the secretaries of state, the statute requiring that only for
the purpose of proceeding against the parties criminally, 3 Term 11. 79. 4 Burr. 2017. S. P.

Therefore,

190 AMBASSADORS.

Therefore, though his name be not registered, the sherJiT must execute the process, notwith-
standing the production of a certificate. 1 Wils. 20.] jjThis last passage is unintelligible ; and
the report is nardly less so : the meaning appears to be, that if the party is not registered, the
iheriff should execute the process, since he cannot harm himself in so doing, (h) Where a servant
of an ambassador resided in a private house, not the ambassador's, and let out a part of it in
lodgin'»s, it was held that his goods in suoh house were not exempt from distress for poor's
rate, such goods being in no way necessary for the convenience of the ambassador. Novello
▼. Towgood, 1 Bam. & C. 554.\\

" Provided, that no merchant or other trader whatsoever

** within the description of any of the statutes against bankrupts,

*' who hath or shall put himself into the service of any such

" ambassador or public minister, shall have or take any manner

*' of benefit ; and that no person shall be proceeded against

*' as having arrested the servant of an ambassador or public

" minister, by virtue of this act, unless the name of such servant

1(c) If not ac- " b^ ^^^^ registered (c) in the office of one of the principal secre-

tualiy a ser- " taries of state, and by such secretary transmitted to the sheriffs

vant, though « ©f London and Middlesex for the time being, or their under

his name be u sheriffs or deputies ; who shall, upon the receipt thereof, hang

bnot within ** "P the same in some public place in their offices, whereto

the act. Fitzg. " all persons may resort and take copies thereof without fee or

soo.] « reward.

" The persons who, by suing out writs, Src violate this law,

** which is declared a public act, to be punished at the discre-

** tion of the two chief justices and lord chancellor, or any two

« of them."

Abr. Eq. 550. One protected by the Genoese ambassador brought a bill in

pi. 4. Good . Chancery, and was ordered, though after an answer put in (rf), to

Jjc^r Pasch ^^^ security to answer the costs, in the same manner as if he

1729. 2 Wil. were a foreigner {e) ; because, by the above statute, all processes

Rep.452. And against ambassadors and their servants are made void; so that

* \^^^ °l^^^ if the bill should be dismissed, no process could issue against

made by my ^^™'

Lord Cowpcr, after answer put in, Trin. 1709. between Barret and Buck, (d) But it has been
denied in the Exchequer, even before answer, where the bill w^as for an injunction to stay the
defendant's proceedings at law in ejectment, because the plaintiff was in a manner forced into
this court, (viz. the Exchequer,) and did not come in originally. Bunb. Rep. 272. pi. 349. If
the motion be before answer, the defendant will not be obliged to put one in, until the plaintiff
give bond with a surety to the senior six clerk not towards the cause in 40/. penalty for
answering costs. 2 Will. 452. pi. 142. Mosely, 175. pi. 89. (rf) A deposit in money will not
be permitted instead thereof. Bunb. Rep. 35. pi. 53.

Barbuit's [A consul, or any person acting in an office of that kind, it

S*b. 281 seems, is not entitled to privilege.

Ihid. llThe The privilege of a public minister is annexed to his situation ;

SmS?" pri^. •' *^ ^^^ privilege of the state that sends him, and not that of the
lege from ar-' Individual : he cannot therefore wave it, or forfeit it, by becom-
r«ta« a public »ng a trader, <§-c.]

minister, was discussed in Marshal v. Critico, 9 East, 447. and Clarke v. Critico, 1 Taunt.
106. ; but It was not necessary to decide the point. It was however determined in Vieash v.
Becker, 3 Maule & S. 884., on the authority of Vattel and Wicquefort, that he is not a public
Bimister entitled to privilege from arrest on mesne process. The authority of Bynkershoek
de Foro Legatorum «. 10. accords with this decisionlU

[ 191 ]
AMENDMENT AND JEOFAIL.

(A) Of Amendments at Common Law.

(B) The several Statutes of Amendment and Jeofail.

the King, or to any Criminal Proceedings.

(D) In what Cases the Proceedings in Civil Causes

are amendable, and the Manner thereof) as by
amending one Part of the Record by another :
and herein

1. Of the Original Writ and Process.

2. Of the Imparlance Roll.

3. Of the Plea Roll.

4. Of the Jury, Process^ and Nisi Prius Roll.
6. Of the Verdict.

(E) What Defects may be amended, or are aided after

Verdict : and herein

1. Of the Want of sufficient Certainty in the Plaintiff^ s De-

claration in not setting forth his Cause.

2. Of Reptignancy and Surplusage,

3. Of Insufficiencxf in the Defendant^ Bar.

4. Of immaierial and informal Issues.

(F) Of amending the Judgment.

(G) At what Time the Amendment must be made ;

and therein of Records removed out of inferior

Courts, and the paying of Costs.
fH) Where Records defaced by Design or Accident

will be set right and amended.
[(I) Of Amendments in Equity.]

(A) Of Amendments at Common Law.

AT common law there was but little room for am^idments, Britt.s. eCo.

as appears by the several statutes oi amendments andjeofailSi iS6. (o) This

and likewise by the constitution of the courts ; for, says Britton, ordinance of

the

192

AMENDMENT AND JEOFAIL.

E. 1. was so

strictly ob-
served, that
when Cli.
Just. Ingham,
in his reign,
moved with

the judges are to record the parols deduced before them in judg-
ment; also, says he, E. 1. (a) granted to his justices to record
the pleas pleaded before them, but they are not to erase their re-
cords, nor amend them, nor record against their enrolment, nor
any way suffer their records to be a warrant to justify their own

misdoings,
compassion ° j , , .

for tne circumstances of a poor man who was fined 15s. 4d. erased the record, and made it
6t. 8rf^ he was fined 800 marks. 4 Inst. 255.

9H.7. I6.b. Hence it appears, that regularly at common law, neither false

4H.6. i6.b. Xxiiinj the omission of a word, syllable or letter, or other de-
8 Co. 157. ^^^j. ^^ variance from the approved and legal foims, were
amendable.

But out of this general rule there are the following excep-
tions: I. All mistakes were amendable the same term, be-
cause it is a roll of that term, and so in the breast of the court
during the whole term, and then a new roll might be brought in
the cause, and consequently the same roll may be amended.

That part of the count which records the writ was amendable
at common law, though of a subsequent term; because the re-
cording of the writ was surplusage, and the judges were not to
record against a former record.

2 Hawk. P. C.

192.

« Co. 1 57.

Hlackinore's

case.

8 Co. 156. b.
7 H.6. 45.
FWeCro.Car.
144.Sand.517.

(In penal ac-
tions, while the proceedings are in paper, mistakes are amendable at common law ; and it has
been done where several terms had elapsed since the commencement of the suit, and issue had
been ioined. 2 Burr. 1099. So where the record had gone down to trial, and been afterwards
withctrawn. 5 Burr. 2833.] But this is a matter of discretion in the court, and a similar appH-
catioD has been refused. 2 Term R. 707.] ||There is no difference as to amending at common
law between penal and other actions; 1 Stra. 137. 2Stra. 1227. 1 Wils. 256. 1 Burr. 402.
2 Ker. 82. 3 Maule & S. 450. Nor between civil and criminal cases ; 1 Salk. 51. Ld. Raym.
1068. 6 Mod. 285. 4East, 175. Tidd, 711, 712.(9th edit.)||

S H. 4. 4.

An essoin, if the plaintifPs name were mistaken, or if it was
made as guardian, when there was no guardian in the writ, was
amendable at common law, because such an essoin was contrary
to the writ, and consequently an enrolment of it would contradict
a former writ.

Continuances could be amended at common law; as where
A. brought a bill against B. who vouched C. who entered into
warranty, and pleaded to issue; a venire Jacias, and a jurat, inter
A. and B. was put in, which jurat, ought to have been between
A. and C. ; and because it appeared by the record of the issue,
and the award of the venire facias, and the venire itself, that the
684"strari39. j^^^t' ought to have been between A. and C. this was was amend-
s Stra. 734. ed, otherwise it would have been an enrolment against a former

record.
8 Co. 156. In the case of the king, the writ was amendable where the

^^q/""' ^^^ ^^^^^ was in the form, as in a quare impedit brought by the
king, the writ was presentere instead of presentare ; and it was
amended ; for it could not be intended that the original institu-
tion of the court was to destroy or lessen the prerogative of the
king.

Tidd'a Prac. II At common law, when the proceedings were ore tenus at the

<'9J(9^ edit.) bar of the court, if any error was perceived in them, it was presently
theredted a"iended ; afterwards, when the pleadings came to be inpaper, it

was

Fitz- Amend-
ment, 7. 61.
Bro. Amend-
ment, 26.

8 Co. 1 5&. b.
Roll. Abr. 899
Vide for this
Cro.Eliz. 619
Stile, 339.
Yelv. 1 SS.
2 Mod. 3 16.
12 Mod. 8

(A) Of Amendments at Common Law, IDS

was Uiought reasonable, that the parties should have the like in-
(liil<reiice ; and hence it is now settled, that whilst the proceedings
are in paper, and before they are entered of record, the court or
a judge will amend the declaration, plea, replication, Sfc. in form
or substance, on proper and equitable terms ; and declarations in
actions on bail-bonds may be amended (in the Common Pleas) ♦
as well as any others. Amendments are commonly made by sum-
mons and order at a judge's chambers, and now by a judge at
Nisi Prills, or on the Circuit, by virtue of 1 G. 4. c. 55. § 5.

The declaration may be amended even after a plea in abate- j jg^^j go
ment of misnomer. i Ld. Raym.

669. 7 Term R. 698. 3Maule&S.450. 2 Chitt. R- 8. 28

Or of the statute of additions. 2 g^^^^ ^^^^

9 Ld. Raym. 1472.; but see 1 Salk. 50. 2 Ld.Raym. 869.

Or of nul tiel record. i -^ji^ g^^

7 Term R. 447.

Or after verdict, by increasing the damages according to the 7TermR.i32.
truth as found by the jury, a new trial being granted to enable 2Chitt.R.2T.
the defendant to resist the enlarged demand.

So after a nonsuit was set aside in prohibition, the plaintiff Franklin v
had leave to amend the suggestion. Holmes,

Tidd's Pract. 697.

And the Common Pleas has permitted a new trial, and amend- » Taunt, si.

ment of the record after a nonsuit for a variance, in an unde- ^^^^- & P"'»-

fended causP ^*^- ^ ^^'■^

lenaea cause. ^^^ ^ g.^^^^ ^

A. 896.; but see 5 Moo. 164. 2 Bro. & B. 397. S. C. contrh.

Though in the King's Bench formerly the plaintiff was not Tidd's Prac.
allowed to add a new count (or a new cause of action, which was <^9M9th edit.)
considered the same,) to his declaration, after plea pleaded, or there cited,
after the second term from the return of the writ, (that being the
time within which he is bound to declare,) it is now ttie prac-
tice in the King's Bench to permit a new count to be added
after the end of the second term, when the cause of action is
substantially the same, but not if different. And though formerly
the Common Pleas would not allow new counts to be added after
the end of the second term, yet the rule is now the same as in
the King's Bench, — that they may be added, provided they con-
tain a fresh cause of action.

But the Common Pleas will not allow such an amendment to
affect bail discharged ; and in an action against a sheriff's officer 6 Taunt. 483.
for extortion on one statute, they refused to allow the addition ^ ^oo. 350.
of counts on another statute for the same offence.

But admitted the declaration to be amended from asstmpsil 6 Taunt. 419.
to debt, in an action for money lost by stock-jobbing on the g^^'^^'^a'^/^'
statute 7 G. 2. c. 8. toamendmems

in real actions, see Tidd's Prac. 755. (8th edit.), and of Fines and Recoveries, see ibid., and tit.
Fines and Recoveries, Vol. III.

Before plea in general no costs are payable on amending the
declaration, except costs of .he application; and in the King's
Bench the declaration may be amended in matter ofjbrm after

Vol. I. O the

19i AMENDMENT AND JEOFAIL. fij

(a)Ti(U|, 707. the general issue pleaded, and before entry, without paying
(9tli edit.) costs, or giving an imparlance, (a) But if the amendment be in
So" l!St^^° matter of substance, or after tlie general issue is entered, or a
1 55. Tidil, special plea pleaded, the plaintiff" must pay costs, or give an
707. imparlance at the election of the defendant. ((?»)

TiJd, 707. In the Common Pleas it is a rule, that before the declaration

'?.Stra.950. is actually entered, the plaintiff' may amend it, paying costs, or
giving an imparlance at his election, by order of a judge or pro-
thonotary ; and even after it is entered, if the amendment be but
a small matter that does not deface the roll, it is amendable, be-
fore issue or demurrer entered, by rule of court, upon payment
of costs, and liberty to plead with a new or further imparlance.
(tYsTaunt.si. When amendments are made at the trial, they are made with-
Tidd, 70S. out costs, if the action is to be defended on the merits, {c) On
Ry. & Moo. amending the declaration in the King's Bench, after plea plead-
fJ^T'dd "08 ^'^' ^^^^ defendant is at liberty to plead de novo (if his case require
(e) s'sal'k.sn, it) in two days after amendment made, and payment of costs {d) ;
518. 520. and if a rule to plead has been entered the same term, though

®!?!f^*"lV ^'^' before the amendment, it is sufficient, otherwise a new rule must

a Chitt.R.332. u * J / \
be entered, (e)

(g) 2 Black. R. But in the Common Pleas the defendant is entitled, in all
785. Tidd, cases on amendment of the declaration, to a new four-day rule
^°^' to plead {g)f and he may plead de novo, if he has occasion, but he

(A) Barnes, 275. j|g j^qj. obliged to vary his first defence, (h)

(i) 1 Wils. 223. ^^^^ reason for not permitting a new count or right of action
Barnes, 22. to be added after the second term, being that the plaintiff" is

1 H. Black. obliged to declare within two terms, does not apply to pleas, re-
f^^' /„ plications, Sfc. ; and they therefore may in general be amended

2 Chitt. R. 28. ^^ ^"y time, so long as they are in paper, {i)
6 Barn. & Aid. 696. Tidd, 709. (9th edit.)

(i)Ld.Raj'm. After a demurrer, the courts would not formerly give leave to
510. 668.679 amend without consent of the adverse party, (/r) But it is now

1 Salk. 50. settled, that after demurrer, or joinder in demurrer, either party
Gilb C P m. ^^ ^^ liberty to amend while the proceedings are in paper (Z), and
(to) i Barnard. ^^^^ ^^er the proceedings are entered on record, and the de-
K.B. 213. 220. murrer has been argued, the courts will give leave to amend,
^' w^c;' ^' where the justice of the case requires it, upon payment of costs, (m)
402 (5th"edit ) ^"'' ^" '^^ Common Pleas, after a party has once amended on

2 Stra. 735. demurrer, the court will not give him leave to amend again on a
954. 976. second demurrer, {d) On similar grounds, the courts will some-
sCh^t^R^ times give a party leave to withdraw his demurrer after argu-
292. Tidd nient, and plead or reply de novo, to let in a trial of the merits (w) ;
710. (d) 2'h. but, in such cases, they will always take care that the opposite
Black. 561. ; party is not delayed or prejudiced, (o) The giving or withhold-
s^TaSt 515 ^"^ ^^^ ^^ withdraw demurrer is entirely discretionary in the
2Mw).566. court, and they refused it to the plaintiff" in an action against
(n)Dougl.385. bail, whom they are inclined to favour. (j))\\

452. lKcn.3S5. Say. R. 316.; and sec 2 Chitt. R. 5. (o) 2 Burr. 756. 1 East, 372. (jo) Say.
K.n6. 1 East, 135. 5Pricc, 412. 7Dow. &Ry.41. Tidd, 710, 711.

(B) The

(B) The several Statutes of Amendment and JeofaiU 195

(B) The several Statutes of Amendment and Jeofail. •

nPHE tying down the courts so strictly not to alter their re-
cords after the first term was found very inconvenient, and
many judgments were reversed by the misprison of clerks, ^c.
wherefore it was enacted.

By 14 Ed. 3. c. 6. " that by the misprision of a clerk in any hE. s. c. 6.
" place wheresoever it be, no process shall be annulled or dis- («) The judges
" continued by mistakinsr in writing (a) one syllable or one construed this

o\' J ^ ^ statute so la*

" letter too much or too little ; but as soon as the thing is per- vourably for"

" ceived by challenge of the party, or in other manner, it shall the suitors,

" be hastily amended in due form, without ffivins advantage that they ex-

" to the party that challengeth the same because of such mis- '^^""f" **_fo a
,j • . S, "^ ^ word. 8 Co.

P»*'sion. 158^ ^ j3^j

they were not agreed whether they could make these amendments as well after judgment as
before, 8 Co. 157. b., which occasioned the 9 H. 5. c. 4., by which it is declared, that the judges
shall have the same power as well after as before judgment, as long as the record or process is
before them; and this statute is confirmed by 4 H.6. c. 5. with an exception that it shall not
extend to process on outlawry, or to records or processes in Wales. But according to 2 Sand.
40. this last exception, and the like exception in 8 H. 6. c. 15. seem to be annulled by the sta-
tute of 27 H. 8. c. 26. by which it is enacted, that the laws of England shall be used, practised,
and executed in Wales.

Though these statutes gave the judges a greater power than 8 Co. 157. a.
they had before, yet it was found that they were too much An original, or
cramped, having authority to amend nothing but processes, which nature^hereof
they did not construe in a large signification, so as to compre- not included
hend the whole proceedings, but confined it to the mesne process within the
and jury process : wherefore to enlarge the authority of the ^^°^^ process,
courts,

By the 8 H. 6. c. 12. it is enacted, "that for error assigned eH. 6. c. 12.
" in any records, process, or warrant of attorney, original writ, 8 Mod. 3i4.
" or judicial panel or return, by razing or interlining, or by 12 Mod. 523,
" addition, subtraction, or diminution of words, letters, titles, -Kajm. 65.
" 8,-c. no judgment or record shall be reversed or annulled,
*' but the judges, in any record, process, word, plea, warrant of
" attorney, writ, panel or return in affirmance of judgment, may
** amend all that which to them seems to be the misprision
" of the clerk, (except appeals, indictments of treason, felony
" and outlawries of the same, and the substance of the proper
" names, sirnames and additions left out in originals and exi-
" gents, contrary to the 1 H. 5. c. 5. and other writs containing
" proclamation ;) and if certified defective, the parties in affirm-
*' ance of judgment may allege the variance between the re-
" cord and certificate, and if found and certified it shall be
" amended."

By the 8 H. 6. c. 15. " the judges in any records or processes 8 H. 6. c. 15.
" before them, by error or otherwise, or in returns of sheriflfs,
" coroners, bailiffs of franchise? or others, may amend the mis-
" prision of the clerks of the courts, or of the sheriffs, coroners,
" their clerks and other officers whatsoever, in writing a letter
" or syllable too much or too little.'*

02 As

196

AMENDMENT AND JEOFAIL. "Al

H(rt)The above As these statutes {a) extended only to what the justices should
are strictly interj^ret the misprision of their clerks arid other officers, it was
speaking the found, by experience, that many just causes were overthrown

amcndmen?r ^""^ '^''^"' °^ ^^^^\ "°' ^^"^^^^ ^^ ^"^ ^^ ^'^"^^^ statutes, though
the rest coin- they were good in substance : wherefore, for further rehef of
inencing with suitors,
52 H. 8. c. SO.

are statutes of jeofails. 1 Saik.31. They extend to penal as well as other actions. 2 Stra.
1227. Dougl. 114. 1 Marsh. ISO. 2 Chitt. R. 25. ; but not to criminal cases. lSalk.51.
2 Ld. Rayin. 1307.; nor as it should seem to process in inferior courts. Willes. 122. ; but see
Mr. Durnford's note. Ibid., and Tidd, 712.||

32 H.8. c. 30. The 32 H. c. 30. enacts, " that if {b) any issue be (c) tried (r/)

On this statute « by the oath of twelve men, for the {e) party plaintiff or de-

a careful and « ^andant, Of for the party tenant or defendant, in any courts

has the follow- " ^^ record, judgment shall be given, any mispleading, lack of

ingnotes.rufc " colour, insufficient pleading, or jeofail, any miscontinuance

Danv. Abr. « or {g) [h) (/) [k) discontinuance or (/) misconveying of {m) [n)

352. (p) But « process, misioining of the issue (o), lack of warrant of attorney

vet Bn 1SSU6 'JO^ . • * *^

upon the vi et *' o^ the party {p) against whom the issue shall be tried, or other
armis is not " negligence of the parties, their counsellors, or attornies, had
within the act; " or made to the contrary thereof notwithstanding; and the
one^^oined " judgment shall stand according to the said verdict, without
upon the spe- reversal.

cial matter alleged. Cro. Jac. 599., and vide Sand. 81, 82. (c) But if in replevin the plaintiff
is nonsuit after evidence, and the jury assess damages for the avowant, this is no trial within the
act; for the inquiry of the jury is only in nature of an office of inquest. Cro. Eliz. 339. ad-
judged, 412. adjudged, and vide Gouls. 49. Hob. 69. (d) So that an issue upon md tiel record
IS not within the act. 11 Co. 8. a. Cro. Jac. 304. (e) In trespass against A. and B., J. pleads
not guilty, and B, confesses the action, and a writ of enquiry is awarded upon the roll, but after
quoad B. there is no continuance entered, and after the issue is found for the plaintiff, admit-
ting there is a discontinuance qtioad B., yet it is aided by the statute ; for B. was party to the
original, and is privy to the verdict, being liable to the damages. Sir John Haydon's case,
1 1 Co. 6.b. adjudged. Roll. R. 31. adjudged, and vide Cro. Jac. 304., and vide Cro. Car. 313. —
But an issue between the demandant and vouchee is not within the act. And Kelw. 207. b.
5 Co. 36. b. 11 Co. 6. b. ; butter Hob. 281. this opinion is questioned, it not being said party
to the original, (g) If as to part the defendant joins issue, but says nothing as to the rest, and
this issue is found for the plaintiff, he shall have judgment. Gomersal and Gomersal, 1 1 Co, 6.b.
2 Leon. 194. Godb. 55. So 2 Roll. R. 161. Cro. Jac. 353. Hob. 187. 3 Lev. 59. ; and vide
Gouls. 109. Bulstr. 25. Cart. 51. — But if the matter is pleaded to the whole, though in fact
but m answer to part, this is a bad plea, and not helped by the statute. Hardr. 331. (h) This
extends as well to those on the part of the plaintiff as on the part of the defendant. 2 Roll.
K. 161. (t) Discontinuances after, as well as those before, verdict are within this act. Cro.
Ehz. 489. Cro. Jac. 528. ; and vide Cro. Car. 256. Cro. Jac. 211. Ci o. Eliz. 320. (k) Dis-
contmuances are helped by tlie statute, but not imperfect verdicts. 2 Leon. 1 96. Cro. Eliz.
^^Z" °^'^:^^' 5 Lev. 55. (I) But if upon an information of usury the court awards a
subpoena against the defendant, this is not a misconveying, but a disorderly process, and not
aided by the statute. Topliff and Waller, And. 48. adjudged. Kelw. 2 14. adjudged, and there
said this 13 no more helped by the statute than if in ejectment the court should award sl petit
cape, or in a real action a distress or attachment ; for such disorders were never intended to be

place, &c. were not aided by this statute. r«fc Cro. Eliz. 468. Gouls. 58. Winch. 69. 4 Leon.
85. LT0.Jac.647. Lit. R. 365. Moor, 91. pi. 212. Kelw. 212. 5 Co. 56. b. {m) But if
tnere De any delect in an original, or in the return thereof, it is not helped by this act. Kelw.
f \irf { '^' ^"^ i^ ^ dutringas is awarded where it should be an habeas corpora. Savil. 37.
W ytac Leon. 175. Cro. Eliz. 145. 153. where the entry was, that the defendant obtulit se
per Utgguu attor. tuum, without shewing his christian name; and it was argue<l that it was

helped

(B) Tiie several Staliiies of Amendment and JeqfaU, 197

helped by this statute; and in Cro. Eliz. 15.5., it was said, that if there were any warrant of
attorney, and his name appears, then it may be amended by it. But for this vide Roll. Abr.
289. Leon. 175.; and vide 18 Eliz. c 14., by which a provision is made against the want of
any warrant of attorney, {p) But if the judgment is not given upon the verdict, it is not
within the act; as in debt against an heir uj on the bond of his ancestor, he pleads riens per
descent, except twenty acres in D., and the plaintiff" replies he hath more in 8., upon which
they are at issue ; and it is found for the defendant, but the plaintiiF takes judgrneut upon the
confession of the assets. Molineux and Molineux, Yelv. 169., reversed by reason of a discon-
tinuance. Cro. Jac. 256. ; reversed accordingly, and said the statute must be intended where
the verdict is the occasion of the judgment; and vide Cro. Jac. 211. Cro. Eliz. 359. 412.
[N. B. This last point was determined on the statute of 18 Eliz. c 14.]

This statute, though much more extensive than the others,
and though it very much enlarged the authority of the judges in
amendments in mistakes, yet it remedied no omission but one,
which was the party's own neglect in not filing his warrant,
which should not after verdict prejudice the right of the party
that had prevailed ; therefore to remedy the omissions which
the prevailing party might have been guilty of, as well as the
other side.

By the 18 Eliz. c. 14. it is enacted, " that after verdict given is Eliz. c. 14.
*' in any action, suit, bill, plaint, or demand in any court of (a) But if in
*' record, judgment (a) thereupon shall not be stayed or re- trespass
*' versed for want of form touching false Latin or variance from ^^ ^ j' ''
" the register, or [b) other faidts in form, in any writ original pleads' not ,
" or judicial, count, declaration, plaint, bill, suitor demand; guilty, and it is
" or for (c) (d) want of any writ (<?) original or iudicial, or found for him,
tc \ c r \ n\ ' ' c \ / -N • ax • ,. I but agauist the

" by reason or (g) any {/i) imperrect or (?) insulticient return other two

" of any sheriff' or other officer, or for want of any warrant of there is ju'dg-
*' attorney (k), or for any fliult in process, upon or after any ment by de-

*' aid prier and voucher." ^""1^' the want

^ . 01 an origmal

may be assigned for error ; for the verdict being found for A. he is out of the case, and it is as
if the action had been brought agaiuot the other two only ; but if the verdict had been for the
plaintiff*, the want of the original quoad the other had been cured. 1 Lev. 210. (b) But the omis-
sion of vi et armis in a declaration of trespass is substance, because that is the inducement for
the king's fine. Cro. Car. 407. March, 140. Cro. Jac. 445. 526. 556. ; but t)2f?e Cro. Jac. 130.
2 Roll. R. 285. — So is the assignment of u breach upon a recognizance for good behaviour.
Cro. Jac. 412. (c) Leon. 30, 51. Fw/^ where the original was determined and not revived,
(rf) An ill writ in substance, or a good writ which warrants not the declaration, is not aided by
the statute. Cro. Eliz. 722. Gouls. 126. Yelv. 108. 209. Sid. 84. 5 Co. 37. b. 5 Bulstr. 224.
Roll.R. 452. — When the variance is such that it shall be taken as no original. Cro. Eliz. 204.
Hob. 251. Cro. Jac. 654, 655, Cro. Car. 327. Cro. Eliz. 286. 3 Mod. 156. 10 Mod. 318.
568. 1 1 Mod. 68. pi. .3. 171.250.240. 12 Mod. 235. Fitzg. 96. 2 Roll. R. 382. 5 Co. 37. b.
— But not so where the vicious writ is certified to be the writ upon which the proceedings
were, and that there is no other. ' Cro. Jac. 185. 479. 664. 675. Palm. 428. Brown. 96, 97.
Cro. Car. 272. 28 1. Jones, 304. Latch. 1 1 6. Yelv. 109. — But where it appears there was
a good original, no averment shall be taken that the proceedings were on the vicious one.
Cro. Jac. 597. Palm. 428. — And in ejectment, where the declaration recited the original to be
summwtitus est, there being none upon the file, the court would not intend a vicious one; but
that there was a good one, which is lost ; and that the plaintiff''s clerk mistook in the recital
thereof. Redman and Edolph. Sand. 317. JlNo advantage can now be taken of a variance
between the original and the declaration, for the court will not grant oyer of the original,
(Ford v. Burnham, Barnes, 340. Boats v; Edwards, Doug. 227.); nor will they set aside pro-
ceedings for irregularity on the ground of such variance. Spalding v. Mure, 6 Term R. 365.
And as to a writ of error for a defective original, the Master of the Rolls will grant a new
original or order an amendment. Carr v. Shaw, 7 Term R. 299. Deshons v. Head, 7 East,
583. Murray v. llubbart, 1 Bos. & Pull. 645. Gray v. Sidniff", 5 Bos. & Pull. f;45. 1 Saund.
517. a, b. (5l1i edit.)|| So the want of a venire, distringas, tj-c. is aided, but not a vicious one ;
and where a vicious one shall be taken as one, vide Cro. Eliz. 467. Owen, 59. Moor, 465.

O 3 Noy,

198 AMENDMENT AND JEOFAIL.

Not S7. Moor, 684. pL 944.; and vide Cro.Eliz. 215. 257. 359. 422. 435. 781. Cro. Jac-
65 162.396. Cro. Car. 90. Moor, 402. pi. 535. 623. pi. 852. 696. pi. 967. Godb. 194.
Leon. 329. Bul8t.l30, 131. sBuUuiSO. Brownl. 78. 97. Yelv. 69. Roll. R. 22. Stile,
8 483. March, 26. 2 Roll. R. 285. MThe want of a bill on the file, which is in the nature
of an original, is aided by the eauity of this act. Hob. 130. 134. 264. 282. Jones, 304. Cro.
Car. 282. Stile, 91. ; and Cro. Jac. 109. to the contrary is not law. — Qucere of the want of a
plaint in inferior courts ; but, however, an erroneous plaint is not helped. Cro. Jac. 108, 109.
Stile 115. Roll. R.338. (g) But if there be no return, as if the writ be album breve, or the
name of the sheriff not indorsed, this is not helped. Roll. R. 295. 5 Co. 41. Cro. Eliz. 310.
509. Yelv. 110. Cro. Jac. 188, 189. (h) Vide Stile, 91. 2R0II.R.247. In the return of the
venire, the words quUibet juratorum per plegiat. were wanting; and Cro. Jac. 534., per curiam,
It was held not as a blank or no return, but as an insufficient one, and helped. 2 Roll. R. 87.
adjudged, because by the appearance of the jurors it was salved, and said it was not like Dr.
Hussey's case, where pledges where wanting upon an original, which vide 3 Bulst. 275, 276, &c.

Roll. R. 445 447. Cro. Jac. 414., where it is said, that not finding pledges upon an original

is merely the neglect of the party, and so not helped. — If a venire is awarded to the coro-
ners and returned by two of them only; whereas at the time of the award and return thereof,
there were two more ; this is only a mis-return and aided. Lamb and Wiseman, Cro. Jac. 383.
adjud<Ted. Hob. 70. adjudged; and yet if one sheriff of London makes a return without the
otner^this is not helped, being no return at all; for they make but one officer, and the court
knows that in one sheriff there is two persons. Hob. 70. Qm. Of this reason ? (i) Upon the
return of a venire de viedietale linguce, it did not appear which were denizens, and which aliens.
Cro. Eliz. 841. per curiam. It is an insufficient return, and aided by the statute. — Upon the
ccmre twenty-three only were returned, but the habeas corpora was awarded against the twenty-
three and A., and eleven of the other and A. were sworn, and tried the cause. Fines and
North, Jones, 302. adjudged, it was not helped ; for A. was not returned by the sheriff. Cro.
Car. 278. 5 Co. 36, b. 37. a. Cro. Eliz. 1 94. Brownl. 274. Jones, 557.; and vide Sid. 66.
— So if the trial had been by eleven of the twenty-three, and one of the tales de cireumstan-
tibus. Sankill and Stocker, Cro. Car. 223. adjudged per curiam cont. Croke. Jones, 245. ; but
vide Brownl. 274., where it was adjudged according to the opinion of CroJce. Vide Latch, 54.
But if twenty-five are returned, and the twenty-fifth is sworn, and tries the cause, it is not
helped, because a mis-trial. Cro. Jac. 647. ; but if tried by twelve of the other, it is helped.
Cro. Jac. 647. This was before forty-eight were returned on the panel, {k) In a scire facias
upon a recognizance against th« heirs and ter-tenants of the conusor, the sheriff returns J. S.
ter-tenant, but says nothing as to the heir, and J. S. pleads to issue, and it is found against him.
Cro. Car. 295. adjudged by three judges against Croke, that quoad the heir, there being no
return, it is not helped by the statute; but, per Croke, the defendant having pleaded to issue,
and that being found against him, he shall not now take advantage of the heir's not' being
returned summoned ; and Cro. Car. 512, 315. it was adjudged for the plaintiff) because quoad
the heir, it was only a discontinuance, which is aided by the 32 H. 8. c. 30. Jones, 319.
adjudged. \\{k) And a variance in the name of the plaintiff between the warrant of attorney
and the declaration, is no ground of error. De Tastet v. Rucker, 3 Bro. & Bing. 65.||

2 Sand. 258. These statutes extended only to the courts above, but the

subsequent statutes extend to all courts of record, and remedy
several defects and omissions not included in the former.
21 Jac. I.e. 13. By the 21 Jac. 1. c. 13. it is enacted, "that after verdict
(rt)Sid.6i. It for plaintiff or demandant, defendant or tenant, baily in
(ft) Cro. Car. « • 1 • • -i ^1 • ^ •

17.162.284. assize, vouchee, praiee m aid, or tenant by receipt, in any

480. Jones, " action, suit, bill, plaint or demand, in any court of record,
395. Stile, " judgment thereupon shall not be stayed or reversed for any
Ua^Tn°67^ " variance, in form only, between the original or bill and the de-
(c)This statute " claration, plaint and demand, or for lack of the averment of any
aids not, un- " life («), so it be proved the person living, or because the venire,
less the venue " habeas corpora or distringas was awarded to a wrong officer
sevcrarSces " "*■*"" ""^ insufficient suggestion, or {h) for that the visne is
and one of * " '" (^^ some part mis-awarded, or sued out of more or fewer
those places is " places than it ought to be (</), so as some one place be right
truly named. « named, or for mis-naming any of the jurors in surname or
Sid. 20.— But « addition {e\ in any of the writs, or returns thereof, so as they

« be

(B) The several Statutes of Amendment and Jeofail, 199

** be proved to be the same as were meant to be returned ; or for if it arises
" that there is no return upon any of the writs, so as a panel j*^'" ^^^u „i
*' be returned and annexed thereto ; or for that the sheriff or in several "
" other officer's name is not set to the return of such writ, so as counties, and
" it appear by proof the writ was returned by tiim ; or for that ^^ '^ tried by
" the plaintiff' in ejectment (^), or other personal action, being hef, i o'l"*
" under age, appeared by attorney, and the verdict passed for 122. per Hale.
" him." (d)Bytheopil

nion of" the
greater part of the judges, where, by particular custom, a trial was to be de vicinet. of the four
wards next adjoining, and the venire is awarded de vicinet. of two of them only, it is helped by
the statute. 2 Sand. 258. But Sanders dubitavil, whether it should extend to aid any pro-
ceedings except such as were according to the course of the common law. (e) But this
extends not to any mistake in the christian name. Cro. Car. 202. [[See Willes, 488. 12 East,
6 Tanut. 229.460.11 (g) Stile, 216.* 2\S. jjer Ro/leC.L If the party appear by attorney,
where he ought to appear by guardian, it is error, and not helped by this statute. Danv. Abr.
2 V. tit. Error, fol. 12. pi. 13., and Roll. Abr. 1 v. 747. pi. 13. S. C, where he says the judg-
ment was reversed, because the party plaintiff appeared in person. See 2 Sand. 212, 213.
It seems the general opinion, that when the plaintifi" appears by attorney, unless it is pleaded
in abatement, it is cured after verdict for him, by the stat. 21 Jac. 1. c. 13. the words being
express. The cases in the books contra (except that in Stiles) were before the statute. ||If an
infant defendant appears by attorney the court will, at the instance of the plaintiff', compel an
amendment of the appearance by substituting a guardian. Hindmarsh v. Chandler, 7 Taunt.
488. ; and although an infant defendant against whom judgment has been given may assign for
error that he appeared by attorney, yet if judgment be given in favour of ^an infant defendant,
the plaintiff cannot avail liimsclf of the infant's appearance by attorney as a ground of error.
Bird V. Pegg, 5 Barn. & A. 4 is, [j

The main design of this statute was to help any mistake in the
jury process, but there were several things still to be supplied,
and several others to be adjudged from, which were always con-
strued to be matters of substance, and consequently not aided by

any of the former statutes: wherefore the 16 & 17 Car. 2. was l Vent. 200.
made, the act which Twisdeii called The Omnipotent Act.

By the («) 16 & 17 Car. 2. c. 8. it is enacted, "that after ^^''^' 'J^;""'r'

" verdict in any action, suit, bill or demand, in the courts of f/ct was only"*

" record at Westminster^ county palatine of Chester or Durham, forthreeyears,

" or of the great sessions in Wales, judgment thereupon shall but is made

" not be stayed or reversed for want of form or pledges, sheriff's P^'^Sf lj!!^p^"'i

" name, returned upon the original, or for want of pledges upon 2."c.4r%)But

" any bill or declaration, or for want of a ■prafert in atria of any this extcncU

" deed, or of letters testamentary, or of administration, or for not to any

** the omission of vi et armis, or contra pacem, or for the mistake ^"al >n an im-

" of the christian or surname of either party, sums, day, month ^od^sT^Tyo!

" or year, in any bill, declaration and pleading, being right in 2 Mod. 24.

" any writ, plaint, roll or record preceding, or in the same, to (c) In debt

** wjiich the plaintiff might have demurred and shewed the same }'P°" a bond
£4 r c r 7 , . -^ 7 ni London..

lor cause, or tor want or hoc paratus est verificare, or hoc para- conditioned

** tus est verif care per recardiim, or prrout patet per r''cordum ; or for the pcr-

" for that there is no right venue ; so as a trial was by a jury of formance of

" the (h) proper county or plac'^. (c) where tlie id) action is laid ; t;ovenants,onc
., L II . 1 -^ ' rt ^ 1. e ' L -, of which was

nor snail any judgment after verdict, confession by cogncnnt ^^^ jj^^ cyoy.

" actionem or relicta nerificatione, be reversed for want of a mentof^/irjifi-

*' misericordia or a capiatur, or because one is entered for the ^^dk, in the

" other ; nor for that ideo conccssum est per curiam is entered for ^'^If^jf ^^ j"

" id<io consideraium est, &c. or for that the increase of costs after the delwdant '

04 " verdict

«00 AMENDMENT AND JEOFAIL.

jieadod i)cr- " verdict in an action, or upon a nonsuit in replevin, are not
fbniiancc " entered to be at the request of the party for whom the judg-*

fjenerallyjand (c ment was ^iven, nor by reason that the costs in any judgment
re'^lied that " whatsoever, are not entered to be by consent of the plaintiff;
the Eiirl of Ji. " anJ that all such omissions, variances and defects, and (e) odier
having title by ** matters of like nature, not being against tlie right of the matter
grant, &c. en- « of the suit, nor whereby the issue or trial are altered, shall

tered, mid „ ^ amended where such judgments are or shall be removed by
outtcu nun ;.»,,*'"
find the do- " writ of error.

fendant pleaded the Earl of iV. had no title; and thereupon issue was joined, and tried by a
vune oi Skruh-walkf&nd found for the plaintiff; and though no visne could arise of the \valk,
and it could not be intended n vill, being only collaterally alleged as a thing granted, and not
as a place where any fact was done; yet being tried by a jury of the county where the matter
of the issue arose, it was adjudged for the plaintiff by three judges con. Twisden, who said it
was not within the words; and being a new law, it should not be taken according to the intent,
against the words; and after, error was brought; but the parties agreed, the defendant making
the plaintiff satisfaction. Lev. 207. Sid. 326. adjudged per totam Cur. prcster Twisden,
though objected, the action being laid in London, the issue should have been there tried, unless
•orae other place had been shewed in the record; and vide \ Lev. 122. (rf)The plaintiff
declared that the defendant apud London said of the plaintiff, that he had stolen plate at
Oxford ; and the defendant justified, that he did steal plate at Oxford, per quoad he spoke the
words at London ; and the plaintiff replied, de injurid sua propiia, &c. and thereupon issue
was joined, qlfd tried in London, and found for the plaintiff; and though it was adjudged, that
the only point in issue was, whether the felony was committed, which was triable at Oxford;
yet the plaintiff had judgment. Croft and Boite, Sand. 247, 248. by three judges, who said,
that the issue being tried by a jury of the proper county, it was within the express words of
the statute; but Twisden /or^men^ con^.; and by the reporter, this judgment was given, not
only against the opinion of Twisden, but of several others, as he was informed; and being of
counsel with the defendant, he agreed the meaning of the statute was, that the issue should be
tried in the proper county where it arises, else it would be impossible, by any plea, to remove
the trial from the county where the action is laid. Raym. 181. adjudged, that it whs helped
by the statute; but said, that the defendant might have demurred upon it. 2 Keh. 496.
adjudged, Vent. 263. cited to be adjudged; so Adderly and Wise, 2 Lev. 164, 165. adjiulgcd.
Vent. 263. cited, and vide Raym, 392. where the like point was in question, et adjorn.;
eo, 2 Jones, 82. et adjorn. And in the case of Jenning and Hunking, Vent. 263. (where the
court said it was within the words, but not the meaning of the act; for the intention was so,
that the trial was in the county where the issue did arise,) but in regard of these precedents
cited, they would not stay judgment ; but by the report of this last case, 2 Lev. 121. it does
not appear how the judgment was; but Hale C. J. there said, the meaning of the statute was,
if the issue was tried in the county where the matter thereof arose; for it is not reasonable to
believe the parliament intended to alter the whole course of trials, and to have things tried in
foreign coimties, et adjomatur ; and by the report of the same case, 3 Keb. 350. 371. 509. the
parties agreed to amend, and lay the whole matter in the county where the action was laid ;
and said, the court inclined strongly against the judgment cited, (e) Raym. 398.

Carth.66. The above statutes beuig chiefly calculated to aid imperfec-

Skin.49. pi. 3. (^iQjjg ^i^gj. verdict, and the statute 27 Eliz. c. 5. aiding defects in

form only on a general demurrer, it was thought advisable to

enlarge the authority of the courts further in favour of suitors ;

and therefore,

4 Ann. c. 16. By the 4 Ann. c. 16. for the amendment of the law, it is en-

Kote:Thi8 acted, " that where any demurrer shall be joined and entered
act is said to «{ :„ .• . ••' • ™ i i • i in

have been ^^ ^"^ action or suit m any court of record, the judges shall

]>cnnc<l by the " proceed and give judgment according as the very right of

^reat I/ord " the cause and matter in law shall appear unto them, without

fSiSiop B^r- " ^^g^'^^'^g any imperfection, omission, or defect in any writ,

net's Hist, of " ^^'""^5 plaint, declaration, or other pleading, process, or course

hisownXimes, ** ^^ proceeding whatsoever, except those only which the party

p. 459. " demurring shall specially and particulaily set down and ex-

" press^

(B) The several Statutes of Amendment and Jeofail, 201

" press together with his demurrer, as causes of the same, not-
" withstanding that such imperfection, omission, or defect might
" have heretofore been taken to be matter of substance, and
'* not aided by the 27 EHz. c. 5. so as sufficient matter appear in
" the said pleadings ; upon which the court may give judgment
" according to the very right of the cause, and no advantage or
" exception shall be taken of or for an immaterial traverse, or of
" or for the default of entering pledges upon any bill or declar-
** ation, or of or for the default of alleging the bringing into
" court any bond, bill, indenture, or other deed whatsoever.
" mentioned in the declaration or other pleading, or of or for
" the default of alleging of the bringing into court letters testa-
*' mentary or letters of administration, or of or for the omission
'* of vi et armis, et contra pacem, or either of them, or of or
" for the want of averment of hoc paratus est verijicare, or hoc
" paratus est verificare pa- recorduvi ,- but the court shall give
" judgment according to the very right of the cause, as afore-
" said, without regarding any such imperfections, omissions, and
" defects, or any other matter of like nature, except the same
" shall be specially and particularly set down and shewn for ■•

" cause of demurrer." A?id, "That all the statutes of Jeofails

" shall be extended to judgments which shall be entered upon
** confession, fii'hil (licit, or non sum informatus, in any court of
" record, and no such judgment shall be reversed, nor any
*' judgment upon any writ of enquiry of damages executed
*' thereon, be stayed or reversed for or by reason of any imper-
" lection, omission, defect, matter, or thing whatsoever, which
" would have been aided and cured by any of the said statutes
" o'i jeofails, in case a verdict of twelve men had been given in
" the said action or suit, so as there be an original writ, or bill,
** and warrants of attorney duly fded according to the law as is
" now used."

II In the construction of this statute it has been adjudged, that i Stra. 7«.
it extends to protect judgments by default, against such objec- Vandeput v,
tions only as are remedied after a verdict by the statutes of ^?r.''» ^- ^*
jeofails, and not against objections which are cured by a verdict z'-jI^Ws'
at common law. 2 Stra. 955,

Hayes v. Warren. 2 Burr. 899. Collins v. Gibbs.

It becomes, tlierefore, necessary in order to ascertain the nature Sec Cro. Car.
of the defects, which are aided after a judgment by default since ^?"' |^^{^ ^.
the statute of Anne, to distinguish with accuracy between such 'i\ llaym -is?
imperfections as are cured by a verdict by the common law, and Hitchins v.
those which are now remedied after verdict by the several Stevens,
statutes of jeofails. With respect to the former case it is to be 9f '^'^^' "^^l"
observed, that where there is any defect, imperfection, or cou^h^'lbu^'
omission in any pleadings, whe*^'ier in substance or form (a), ssgtBlackafl
which would have been a fatal objection upon demurrer ; yet if v- Eale.
the issue joined be such as necessarily required on the trial Jj^^°'^' ^^^'
proof of the facts so defectively or imperfectly stated or omitted, Heij. i j^g^
and without which it is not to be presumed that either the judge 308. Manning-
would direct the jury to give, or the jury would have given the to» v. Guil-

verdict,

202 AMENDMENT AND JEOFAIL.

Iiin«, S. C. verdict, such defect, imperfertion, or omission is cured by the
I Vent. 109. verdict by the common law; or, in the phrase often used upon
Golwic^s ^^6 occasion, such defect is not nny jeofail after verdict.
ca«c. I Salk.3G5. Crouther v. Oldficld. Com. Rep. 116. May v. King. 6 Mod. 302. Scrim-
shaw V. Wcstlcy. 2 Ld. Raym. 1060. S. C. Holt's R. 567. 3 Wils. 275. Roe v. Hersey.
7 Brown P. C. 555. Rann v. Hughes. Dougl. 679. Rushton v. Aspinall. 1 Term R. 141. 145.
Spiers V. Parker. Ibid. 545. Johnstone v. Sutton. 3 Term R. 25. Nerot v. Wallace. IIM.
147. Clark V. King. 4 Term R. 472. Bishop v. Hayward. 7 Term R, 518. 523. M'Murdo
V. Smith. Cas.temp. Hardw. 116. Wicker v. Norris, 10 East, 359. Bowdell v. Parsons. 2 Bos
& Pull. 265. Wiu-d V. Harris, (a) 13 East, 407. Higgins v. Highfield. That was an action for
mesne profits ; and the declaration did not state any time when the defendant entered, but only
that he kept the nlaintiff ejected /or a long space of time. After judgment by default, the court
held that this omission was cured by the statute 4 Ann. c. 16., ancf seemed to consider that all de-
fects'of form only were cured by that statute. The case of Blackall v. Heal, Com. Rep. 12. Carth.
389. S. C. was cited in argument, where the same omission was held to be cured after ver-
dict • but whether under the statute of jeofails, or at common law, does not appear, though
the language of the court in giving judgment seems to lean to the latter. The case in
13 East, 407. is, however, decisive upon this point.

J Show. 233, As where in debt for rent, by a bargainee of a reversion, the
234. Hitchins declaration omitted to allege the attornment of the tenant,
V.Stevens. which before the statute 4 Ann. c. 16. §9. was a necessary
1 Stra.78.^ ceremony to complete the title of the bargainee, and, upon nil
Lord S. c' debet, pleaded there was a verdict for the plaintiff, such omission
2Vin.Abr.399. was cured by the verdict by the common law; but is a fatal
(6) It should obiection after a judgment by default, since the statute of 4 Ann.
be observed, clQi2lh)
that Serjeant C. i^. ^ Z. \U)

"Williams (from whom this passage is taken) is here speaking of a conveyance of a reversion
made previous to the statute of Anne, and pleaded after that statute, the second section of
which extends the statutes of jeofails to judgments by default, and the ninth and tenth sections
of which abolish the necessity of attornment.

Hutt. 54. And this construction seems agreeable to the spirnt as well as

Lightfoot V the letter of that statute : for it is clear that, unless the tenant
Brightman, jj^^ jjj fv^pj. attomed, the plaintiff was not entitled to recover. It
Suiers v ' ^^ ^^^ alleged in the declaration that the tenant had attorned ; it
Parker. is at least as probajale that he had not attorned as that he had ;

(fl) But it and it does not appear which is the fact ; upon what ground
seems that ^i^^j^ ^^^^ ^^^ court presume any attornment ? The iudgment by
not be plead- default affords none, for that only admits such facts as ai'e
ed in any alleged. Therefore if such defects should be held to be aided

case, for after a judgment by default, it might frequently happen that the
itisaneccs- court would give judgment for the plaintiff, where he is not
stance implied entitled to recover. But where a verdict has established the
by law. Co. grant, that is a sure ground whence the court can presume
Litt. 303. b. attornment, because without proof of it the plaintiff could not

Plowd. 149. Yisae made out his title as bargainee of the reversion. So

Throckmorton , ^ _ . » , .

T. Tracey ; Where a grant 01 a reversion, a rent charge, an advowson, or

which was on any other hereditament which lies in grant, and can only be con-
demurrer to a veyed by deed, be pleaded, but is not alleged to have been by
plea in bar. ^^^^ , ^^ jj- ^ feoffment be pleaded without livery (a) ; so that

the grantee or feoffee does not shew in himself a perfect title ;

yet, if the grant or feoffment be put in issue, and found by the

jury, the verdict cures such imperfection by the common law.

But such defect is a faUil objection after a judgment by default,

for the reason ^bove given.

Also

(B) The several Statutes o^ Amendment and Jeofail, 203

Also where a promise depends upon the performance of some- 2 Burr. 899.
thing to be first done by him to whom the promise is made, p^ul*"* ^'
and in an action upon such promise the declaration does not '

aver performance by the plaintiff, or that he was ready to per-
form, and there is a verdict for the plaintiff; such omission is
cured by the verdict by the common law, but is a fatal objection
after a judgment by default, for the objection holds exactly the
same as if it had been upon demurrer.

So in an action for a malicious prosecution, it is necessary 2 Rich. 3.

to allege in the declaration that the prosecution is at an end. 9 Hob. 267.

The want of this averment is cured after verdict. But is fatal Naterer v.

upon demurrer, or after a judgment by defliult : for the original j^ ^"^"sog

prosecution may either be determined, or it may still be re- 210. Parker v.

gularly going on ; and how can the court say which of the two Langley.

is the fact ? But where there is a verdict for the plaintiff, it is f^^"- ^^''- ^^•

a necessary inference that it was proved on the trial that the T^'i

. . , •' . ^ 1 / 7 \ grave v. Uuen.

origmal prosecution was at an end. [b) Dougl. 215.

Fisher v. Bristow. 2 Term R. 225. Morgan v. Hughes. Skinner v. Gunton. 1 Sid. 15. Wine v.
Ware, {b) See also 1 Bro. & Bing. 224. Dalby v. Hirst. 9 East, 473. Amey v. Long. 5 Barn.
& Aid. 634. Pippet V. Hearn ; in which case it was held, that a count for [maliciously in-
dicting the plaintiff for perjury without setting out the indictment, is good after verdict; but
this, it should seem, is by the statutes of jeofails.

But where there was any defect, omission, or imperfection,

though in form only, in some collateral parts of the pleading,

that were not in issue between the parties, so that there was no

room to presume that the defect or omission was supplied by

proof, a verdict did not cure them by the common law. As

in the case from Croke's Reports, where the replication did

not aver that the cattle were levant a?id couchant upon the

plaintiff's land, a verdict in favour of the prescripion did not

cure this defect ; for the only point in issue was the prescriptive

right of common, and, therefore, the fact of the cattle being (a) Sec Gilb.

levant and couchant upon the plaintiff's land, or not, was not H-C.B. (3d

at all necessary to be proved before the jury. But as it was an \^^ /^g.

extremely hard case, that after a cause had been tried upon the (6) i Salk. 57.

merits, judgment should either be stayed or reversed for defects Gidley v. Wil-

in form in such collateral matters, such defects were helped ^'»™s.S.C.

after verdict by the statutes o^ jeofails, and are now after judg- 554. 4 J^od

ment by default, by virtue of the statute of Queen Anne, (a) So 133. Mason v.

where an administrator brings debt on a bond, and does not Hanson.

allege in the declaration bi^ ixihom administration was granted, \}f^^yi,^^

and defendant pleads nofi est factum, and there is a verdict for ^ j j ' jg_

the plaintiff, the verdict does not cure this defect by the common feet, whether

law, because it was not necessary to be proved on this issue, the '" form or

title of the administrator not being ip question. But this defect substance, iu

is remedied after verdict by the statute of jVo/a//5, 16 & 17 Car. 2. wi*t"^"wil is

c 8. and, therefore, after a judgment by default since the statute of cured after'

Anne. (6) Upon the same principle, a verdict did not at the com- verdict.

mon law cure other defects in form, such as the want of civiner ^'^) ^' must be
1 .... r ^1 • T .• o 1 • I ° observed, tuat

colour, misjouung of the issue, discontinuance, 8fc. which are two of the

helped after verdict by statute 32 H. 8. c. 30. nor the want of an instances

original

aoi. AMENDMENT AND JEOFAIL.

mentioned in original or judicial writ ; nor the insufficient return of the sheriff;

the text, which are remedied after verdict by the statute 18 Eliz. c. 14. ;

viz. the want j^^j. ^ variance between the original writ and declaration, which

"crfbctlorof was aided after verdict by the statute 21 Jac. 1. c. 13. ; nor did a

an original verdict cure any immaterial traverse, the omission of a jnofert,

writ, are ex- of vi et annis, of contra pacrm, of hoc paraius est va'ificare^ of

presslyex- prout patet per rccordum, all which defects, with many others,

Sutl of are helped after verdict by the statute 16 & 17 Car. 2. c. 8. (c);

Anne, the and the benefits of these statutes is extended to judgments by

words of default by the statute of Arme. [d) But still if the plaintiif

which are, either states a defective title, or totally omits to state any title or

1 ^n^riui^iml cause of action, a verdict will not cure such defect, either by

writ or bill, the common law or by the statutes oi jeofails ; for the plaintilf

and warrant of need not prove more]than what is expressly stated in the declar-

attorney duly ajjop q^ jg necessarily implied from those facts which are
fded according ', ,. •'

to the law as stated, {e)

is now used.'* See 1 Saund. 318. a. ; and 2 Saund. 101. r. (e) Doug. 658. Rushton v.
Aspinall, Cowp. 825. 2 Salk. 6G2. Buxendin v. Siiarp, 1 Salk. 365. Crouther v. Oldfield,
.•> Burr. 1728. Weston v. Mason, per Fa/<?5, J. 3 Wils. 275. 1 Term R. 141. 146. Spieres v.
Parker, 4 Term R. 472. Bishop v. Hayward, Gilb. H. C. B. 141, 142. So, where in an action
on the case for an injury to the plaintiff's reversion in a yard, the declaration stated injuries
in terms which most aptly applied to the possession only, and there was no allegation that
the plaintiff had been injured in his reversionary estate in the premises, the court, after verdict
for the plaintiff, held, that the omission was not cured, and judgment was arrested. 1 Maule
6c S. 234. Jackson v. Pesked. So in debt on 2 & 3 Ed. 6. c. 1. for not setting out tythes, an
omission to state that the tythes had been payable within forty years next before the act, was
held fatal after verdict for the plaintiff. 4 Barn. & Aid. 655. Butt v. Howard. The distinction
is one which has been often remarked between a defective statement of a title or cause of
action, and a statement oi a defective title or cause of action. The former is cured by
verdict, or by the statute of jeofails ; the latter is not.

The King v. Notwithstanding it is, as we have seen, so material to dis-

^'ffT^ * tinguish between defects helped after verdict by the common
looc. ^^^ ^"'^ ^y ^^ statutes o'^ jeofails, in order to apply them to

cases of judgments by default, yet we very often find that there
is no sort of distinction made between the two cases by many of
our reporters and wi'iters upon the subject. In a qmire impedit^
the declaration alleged a seisin in the crown of the advowson,
but no presentation. The seisin was traversed, and a verdict
thereon for the crown. The question was, whether the want
of alleging a presentation was cured by the verdict. The conrt
was of opinion it was ; but Lord Hard'wicke is made to say that
it was so cured, by virtue of the 16 & 17 Car. 2. c. 8. But it
should seem that the report is inaccurate, because from the
whole of Lord Hard'jcicke's argument, it is plain that the ground
upon which the court gave their opinion was, that a presentation
must of necessity have been proved upon the trial, otherwise the
jury could not have found a seisin in the crown ; which is the prin-
ciple upon which the defects are held to be cured by a verdict by
the common law. And in this light is the case considered in the
Black. Com. ^^^ °^ ^"^ Prius, 122. So, Sir William Blackstone in his Com-
394, 595. mentaries states with correctness the principle upon which defects

Sec 1 Will. are held to be aided by a verdict by the common law ; but the two
Saund. 227. ct examples which he adduces to illustrate the principle, are both of

them

them instances of defect, aided after verdict by the statutes of 'cq. notis, (5th

jeofails.W ^'^'•^'

Notwithstanding the great enlargement of the power of the Carth. 158.
judges, by the above recited statutes in amending writs, pro- 367. 520, Ld.
cesses, Sfc. yet none of them were thought to extend to writs of I 4"^^ vr \^^*
error ; and the rather, because such amendment would not be in ig.gg. Comb,
affirmance of the judgment ; but it being found that defective 554, Salk. 49.
writs of error occasioned great delay of justice. pl* 9-

By the 5 G. 1. c. 13. it is enacted, "that all writs of error 5G, i.e. is.
" wherein there shall be any variance from the original record, ||See Tidd's
" or other defect, may and shall be amended and made agree- ^'•'«<^- ip^s.
" able to such record, by the respective courts where such writ ^ edit.)||
" or writs of error shall be made returnable ; and that where
" any verdict hath been or shall be given in any action, suit,
" bill, plaint, or demand, in any of his majesty's courts of
" record, the judgment thereupon shall not be stayed or reversed
" for any defect or fault, either in form or substance, in any bill,
" writ, original cr judicial, or for any variance in such writs
" from the declaration or other proceedings."

[By Stat, of 4 G. 2. c. 26. for turning all law proceedings into 4G. 2. c. 2G.
English^ it is provided, § 4. that every statute o^ jeofails shall ex- ^ **
tend to all forms and proceedings in Eiiglish (except in criminal
cases), and that this clause shall be taken and construed in the
most ample and beneficial manner for the ease and benefit of the
parties, and to prevent frivolous and vexatious delays.]

II As to amendments of the record under Lord Tciiterden^s ^Ua-A.£^^

act, 9 G.4. c. 15., see tit. " Pleas and Pleading," (B)3., and „ . ,

3 Carr. & P. Ca. 485. 394. (4 id.) 22. 24. || ^'^ 4 4^,

^/«^^ V

TT has been a great question whether any of these statutes ex- Gilb. Hist.

tend to the case of the king, either to remedy the party where C.P. 116. Vule

lie has prevailed against the king, or the king against the party; J^Mod"? 'ig7*

but as it has been ruled in both cases, and seems now established Pitzf'ib. 5g.

that these statutes do not extend to the king, it will be needless 122. 263. Stra.

to enter minutely into this enquiry; for though only indictments, ^^^^"^- ^^^•

appeals, and informations on penal statutes are excepted in all m , ^f-^'
a\ ^ ^ c ^rT„ ,^'- 1 1/. " I renal actions

the st^itutes irom 8 H. 6. c. 12. yet because the first statute says are not consi-

it shall be amended on the challenge of the party, in which the dered as crimi-
king cannot be included, the subsequent statutes are supposed to P^^ proceed-
be made on the same platform ; and that this exception is only Ibfe'wIth^inTlie
ex ahundanti cauteld. statutes of

jeofails. Cowp. 382. i Wils. 125.

Thus in a quo laarranio quare the defendant claims a warren, Jones, 320.
the defendant prescribes for a warren within the manor oiRidge^ ^'■<'- C"*"- ^^2.
and the venire was awarded from the villa of liidge^ and not from
the manor of liidgCy and a verdict for the defendant ; the court

awarded

206 AMENDMENT AND JEOFAIL.

(fl)F«fcStat. awarded a new venire {a)^ because they held the king was not
9 Ann. c. 20. within the statute of J. 1 . c. 1 3.

& 7. [The venire i /-<

18 now to be awarded of the body of the county, vide the stat. 4 Ann. c. 16. § 6., and 24 Cr. 2.
c. 18. § 3. Vide head of Juries.]

Salk.5i.pl. 14. So in an information for a seditious libel, the venire was re-
6 Mod. 268. turnable 1 3 October^ and the distringas tested 2-t October^ this was
R ^' ^lon^ ^ discontinuance, because not returned in the presence of the
1472"* Mich, party ; and notwithstanding the queen had a verdict, the court
3 Ann. The would not amend it, though such amendment would have been
Queen v. warranted by the roll, where the distringas was well awai'ded.

Tuchin, by
three judges, lieiitante Gould.

But it has been adjudged, that the several provisoes in these
Cro. Jac.4H, statutes, which except appeals and indictments of felony, ^x.
307 ^2 Sand.*'' ^"^ ^^^^ ^^^^X ^^^^^ not extend to any writ, bill, action or inform-
ass! (A) But a ation upon any popular or penal statute, do not {b) extend to
writ of ravish- those cases in which a remedy is given by way of recompence to
ment of ward ^ party ; as upon the statute of waste, for not setting forth ty the,
upon the sta- c -xJ ,. q
tute of Wcstm. forcible entry, 8,x.
2. c. 35. is within the proviso. Dr. Hussy and Moor, 5 Bulst. 275, 276. Hob. 101.

[4 Ann. c. 16. Also by the 4 Ann. c. 16. for amendment of the law, it is
(c) An inform- enacted, *« that all the statutes oi jeofails shall extend to all
U "t"teaTwere' " ^"^^^ "^ ^"^ °^ ^^^^ majesty's courts of record at Westminster,
imported be- " for recovery of any debt immediately owing, or any revenue
tween,&c. and « belonging to her majesty, her heirs or successors, and shall

the day of ex- <c also extend to all other courts of record." (c)
hibitmg the m-

formation, which was the day of the seizure, and of course would have been excluded : leave was
therefore given to amend, by extending it to the next day. Bunb. 49. p. 80. An information
on the act of navigation was amended, by substituting the words India goods instead o( silks; but
the addition of other goods was not allowed, for that would have been to have made a new
information. Id. 252. p. 327. In one case an amendment was permitted, which made quite
a new offence ; this was in an information of seizure for importing brandy and rum in casks
under sixti/ gallons, by making it, as to the rum in casks, under twenty gallons. Id. 334.
p. 415. But where an indenture of appraisement was dated before the writ of appraisement,
the court inclined to think it might be amended. Id. 58. p. 99.]

9Ann.c.2o.$7. And by the 9 Ann. c. 20. §7. it is enacted, "that the

Ft^it. In- (i statute for the amendment of the law, and all the statutes of

•' ' " Jeofails shall be extended to [all writs of mandamus and] in-

" formations in nature of a quo nxiarranto, and proceedings there-

" on for any the matters in the said act mentioned."
See3Carr.& ||By 9 G. 4". c. 15. Lord Tenterden^s act, the record may be
^'r^ ^A*"p ^"^^"ded on which any trial is pending, in any indictment or
Ca. 22. 24. 79 i^foi'Kiation for misdemeanor, when any variance shall appear^

between any matter, in writing or print, produced in evidence

and the recital thereof on the record. ||

(D)ln

(D) Where Proceedings in Civil Causes amendable, S^^c. 21)7

(D) In what Cases the Proceedings in Civil Causes
are amendable, and the Manner thereof; as by
amending one Part of the Record by another : and
herein,

1. Of the Original Writ ajid Process.

^HE original writ is made amendable by 8 H. 6. c. 12. and 8 Co. 156.

" other statutes, when it is not made out pursuant to the in- Cro. Eliz. g44.
structions given to the cursitor ; and likewise in those misprisions ^o s p ' i ''*
which appear to be vitia scripto7'is, and are not of the substance if the instruc-
of the writ ; as where the instructions to the cursitor are for a tions were
praecipe against Lenthorp FranJc, Melite, and the cursitor makes wrong, it is not
the original Lentliorp Frank, Ge?ie7'oso, the writ («) shall be g"!^"! 4^* 40
amended according to the instructions given the cursitor. j^q Qp *^ij]

412. S. P. (a) So devisit for demisit. Roll. Abr. 198. Hob. 249. Brownl. ISO. Vacariam for
Vicariavi, Hob. 128. were amended, because the instructions to the cursitor in both cases were
right. [A ca. sa. amended after it had been executed, by the award of the writ on the roll.
2 Black. R. 856. A bill of Middlesex filed as of record of 24 G. 2. when it ought to have
been of the 25th, amended by the prcecipe. 1 Term R, 782. A bill of Middlesex, by a
common informer in debt oiily, amended by inserting " in a plea of trespass with an ac-etiam
in debt. 1 Black. R. 462.]

So if instructions are given to the cursitor for drawing a writ 2 Vent. 152.
against Westhy, and he by mistake makes it Westly, and so are all
the proceedings afterwards, this shall be amended ; and accord-
ingly the court ordered the cursitor to attend, who satisfying
them that his instructions were right, they ordered the original
to be amended in court, without any application to the Chan-
cery, or order thence, and they amended all the proceedings
after.

So when there are two defendants, and the writ is praecipe to 2 Lev. 173. So
them both, quod teneat conventionem, this shall be amended, be- ^".^'"^ i" a
cause the instructions beginning against several, the cursitor had f^ddat instead
not pursued them. of reddant.

2 Saund. 38.

A quare impedit was brought ad prcesentand. ad ecclesiam de Cro. Car. 74.
IVatton, where it should have been advicariam ecclesia de Watton, ^"™6r and
though this be an error in substance, the vicarage being distinct
from the parsonage ; yet because the instruction to the cursitor
was right, and this a peremptory writ, it was allowed to be
amended.

So if the party, in order to have a formedon in descender, 8 Co. 1 59. b.
draws instructions that the land descended to him as son
and heir of the donee, and the clerk draws the writ that the
land descended to him as son, and omits heir, if the clerk
shews his instructions, and will make oath thereof, it shall be
amended.

Also the writ was holden amendable if there. was false Latin(a), («) For a di-
or a word that was no Latin, if it were only in the (i) form of a J'^fsity between
writ; but if it were of the substance of the writ it could not; nolaSnTJdf
for by the statutes the courts are allowed, where they have suffi- Lev. 2. 2' Vent,
cient authority, to amend the form of that authority, but not to i^s. (A) There

make

208 AMENDMENT AND JEOFAIL. ^

is n diversity make an authority for themselves, by altering the substance of

between the tl^^ ^vrit.

ncliffcnce and

tijc iiWience of the clerk ; for the negligence (as if he had a copy of the bond, and does not

follow it) shall be amended ; but his nescience or ignorance in the legal form and cause of

originals, is not amendable ; for if this were allowed, it would introduce error and barbarity

into legal proceedings. 8 Co. 159. a. Lev. 2.

Therefore if the writ be imaginavit for imaginatus est, or ava:
Moor, 5. pl. 17. ^^ avicc, it shall be amended, (a)

S. P. 'is^ Bendl. 53. S. P. cited. And. 24. S. P. cited, (a) But in Blackmore's case, 8 Co.
159. b. hos hreve for hoc breve is held not amendable; but qtuere, et vide 2 Vent. 173. whicii
fieems to hold otherwise.

Lev. 2. Heath But the essential part of a writ is not amendable ; as in assize,
and Paget. where the teste was duodecno regis for duodecimo, the writ was
^henlr abated ; {b) because it would have been erroneous to have pro-
should have ceeded on a wrong writ; for this could not have been pleaded in
been destruciio- bar of a new assize; and the court could not amend it, because
nem in a writ ^j^g cursitor was judge of the day when the writ issued, and there
amendable! ^^^^ "° instructions to amend the writ by.

Freeman's case, 5 Co. 43. adjudged. Cro. Eliz. 462. adjudged, the word there being distruc-
tionem with an i, and not an e. 2 Bulstr. 51. cited, and vide Hut. 56. indicari for indicLari; and
2 Roll. R. 255.

8 Co. 159. a. So if a writ be brought against executors in the debet sundi deti-
5 Co. 36. j^gf^ ^Q^ shall not be amended, because the action is miscon-

ceived, giving the court authority to proceed against executors
jure propria, when they are not so chargeable by the law.
8 Co. i6o. But the negligent (<;) omission of what the clerk in course

(c) So in a writ ought to have inserted (as the omission of dei gratia) in the style
ISrrfhe of *e king, shall be amended.

words ostensurus quare nonfecerit, was supplied. 8 Co. 160. a. — In a quare impedit, the word
ad was omitted and amended. Goals. 78. Cro. Eliz. 119. — In a forvicdon of lands in L.
the word in was omitted and amended. Noy, 73. [Teste of a capias amended, as vitiuvi
clerici, and contrary to implied instructions. 2 Black. R. 918. 1 Term R. C. P. 291. A re-
plication am.ended after verdict, by inserting the similiter instead of, &c. Sayer v. Pocock,
Cowp. 407.] iJAnd in Wright, q. t. v. Horton, 2 Chitt. R. 25. the court, on the authority of
Sayer v. Pocock, amended the record in a penal action after a verdict for the plaintiff', by
adding a similiCer, though the objection was taken at the trial ; and see 1 Stark. 400. and
lIolt,N. P. C. 458. S. C. and Grundy v. Mell, 1 New R. 28. But in a subsequent case, in the
C. P. where the avowant in replevin had taken the record down to trial without adding the
similiter to the conclusion of the plea in bar, the verdict was set aside without costs. Griffith
V. Crockford, 5 Bro. & B. 1.; and see also Ferrers v. Weall, 2 Moo. R. 215. Cooke v.
Burke, 5 Taunt. 164.1J

{d) So is the And here it may be proper to observe, that the want of an

Zii^efr^^'i ^"g'"''^K^) is helped {e) after the verdict by 18 El. c. 14. so is the
and'otheTpro- want of a bill upon the file(^), but the statute does not extend to
cess. Videsupra ^elp a vitious writ, {i)

the notes on 18 Eliz. c. 14. and 2 Salk.454. 2 Ld. Raym. 1143. (e) Vide supra the notes
on 18 Eliz. (/) That the want of bill upon the file, which is in nature of an original, is aided
by the equity of the act. Hob. 130. 134. 264. 282. Jones, 504. Cro. Car. 282. Style, 91.
(») Cro. Ehz. 782. Yelv. 108. Sid. 84.

3 Mod^y* • P"^ ^^ ^^^ original be misrecited on the roll, as in ejectment,

Redman and ^^ ^^ ^^ swnmonitus instead of attacliiatus, after verdict, if on

Edolph. search no original is found, it will not be error, for the statute

helps the want of an original to all intents, as if there had been

a good one on the file ; and if there had been a good one, such

misrecital

( D) Where Proceedings in Civil Causes amendabki ^' 209

misrecital would not have been erroneous ; and if the recital of
the original be but form, it was not necessary after verdict to
amend the bill.

II Where the plaintiff held one defendant to bail on a special Carr. v. Shaw,
capias, and proceeded to outlawry against the other, but by a ''' AerraR.299.
wrong name, the court on motion, gave leave to amend the
capias, in order that a new original might be procured, and the
bail be held liable.

And where one of two obligees in a bond sued out a capias in Tabrum v.
his own name alone, against the obligor, and took a recogniz- J^^^}' ^
ance of bail, and afterwards discovering the mistake, sued out a
new original in the name of the two obligees, and applied to the
court to amend the capias and recognizance according to the new
original, the court granted the application as to the capias, but
refused to amend the recognizance, as the bail could not be made
liable without their consent.

So a special capias omitting the Christian names of two of the 2 Smith R.
defendants, was amended, by inserting them, although there was ^^^*
nothing to amend by, on payment of costs.

If there be less than fifteen days between the teste and return Boucher v.
of process by original, it may be amended in the Common Wittle, 1 H.

PleL. . ^^'''-''^

And where a capias is made returnable on a day certain, in- Walker v.
stead of a general return day, that court will allow it to be ^awkey,
amended on payment of costs ; but not if it is to the prejudice of jnman v.
the bail. Huish, 2 New

R. 1Z3.

So where an attachment of privilege was made returnable Adams v. Luck,
afler the essoin day, and before the quarto die post, instead of g jyj^^ jj^
being returnable on a day certain in full term, an amendment
was allowed.

But where the defendant was arrested on a bill of Middlesexy Kenworthy v.
returnable on a dies non, the court held the writ void, and not Peppiat,
amendable, and the defendant was discharged. || 288 ^A^t

amendments affecting bail, see tit. Baily post,

2. Of the Imparlance RoU,

After the first term it is allowed in C, B. to amend the im- RoU- Abr. 198.

parlance roll by the office paper-book, because that is instructions i r if ^r*

to the prothonotary to enter up the imparlance roll, and there- 152. Moor

fore that is equally amendable as the original is by the instruc- 392. Hut. 83.

tions given the cursitor ; but this must be on affidavit that the Litt. Rep. 278.

paper-book has not been altered since the defendant's attorney „ f ff'"S »
r '^ , , . , , . "^ Bench they

has put ins liand to it. ^\\\ amend

botli the bill and the roll by the ofRce paper-book, because this is instructions for making them
both ; but they cannot amend from any other paper-book, because such book is not instruc-
tions left in the office to make up both the roll and the bill; but where there is no office-book,
as where the general issue is pleaded, it seems they should amend either the bill or the roll by
the declaration, of which they gave the defendant a copy, because such declaration is the only

instruction to the clerk of the office.* * In B. R. a bill is seldom filed, unless agmnst a

privileged person. — Where a bill is not filed, the court will permit a right iiill to be filed,

without enquiring into the time of filing, and give tiie plaintiff leave to amend his nlca-roU, by

Vol. I. P the

no AMENDMENT AND JEOFAIL.

the bill filed. Gardener ngalnst Browne, Trin. 15 O. 5. B. R. 2 Stra. 11 51. [But an amend-
ment shall not be made in this manner after verdict, if it change the record in a substantial
point. 2 Wils. 147.]

Litt. Rep. 278. If the bill on the file be with blanks, or the imparlance roll be
Hctley, 142. ^jjIj ijianks for dates or quantities, yet it may be amended by
Roll! Abr 207. ^^^ paper by the clerks themselves, until a recordatur be ordered
Cro. Jac. 165. of the verdict returned on the nisi priiis roll; but after such
Cro. Eliz. 258. recordatu)' it can only be amended by the court ; for the roll
2 w^r* ^"^' lies with the prothonotary to be made up according to the paper-
12 Mod 684 l^ool^j \x\\iA the recordatur of the verdict be allowed ; but if after
Stra. 139. the recordatur be entered, it is ordered on the roll in statu quo
2 Stra. 734. tunc : and then the court is supposed to take conusance of it, in
2 Ld. Rayni. what manner it then was ; and if the clerks might afterwards
g^y * alter the roll after entry of the verdict, they might amend it in

the verdict which is on the nisi prius roll, which was settled
by the judge of nisi priics^ and cannot be altered but by rule of
court.
Roll. Abr. 191. The imparlance roll cannot be amended by the original writ.
Hob. 251. And because the original writ is the authority on which the court

note : If the proceeds, which the plaintiff must prosecute, for otherwise he

count V3T1CS in

form the de- ^^^^ ^^^ proceed in that cause.

fendant may pl^ad it in abatement, for he has abated his own writ by prosecuting it in a

different manner; but if it varies in substance, the defendant may move in arrest of judgment,

because the court has no authority to proceed, having prosecuted a different matter from that

which the writ has given authority to the court to take cognizance of. Jon. 304. Cro. Eliz.

722. Cro. Jac. 654.

Roll. Abr. 207. The imparlance roll cannot be amended by the plea roll or

I "t^ R ^"^ -^'^ «/«■ jyn2« roll ; for the imparlance roll is the original declaration

llut. 9I' Heti. a"^ the ground of all.

59. 3 Bulst. 227. Hob. 76. Latch. 165.

Roll, Abr. 199. But if the declaration be against H. B. and he imparls by the
name of R. B. but pleads by his right name H. B. this is no ma-
terial fault, because it is only a continuance from one term to
another, and by pleading by his right name he acknowledges he
imparled by a wrong name.

2. Of the Plea Boll.
Hob. 76. Roll. The plea roll may be amended by the imparlance roll, which
f^'th^^V. "^ is no more than a recital of the imparlance roll, and begins with
roll seeTidd's "" ^^^^^ proiit patet, being the count of the second term, to which
Prac. 786. the defendant pleaded ore tenus,
(8th edit.)l|

Moor, 711. If there be a mistake in the attorney's name, it may be amended

'^^f irV^V^*^' ^^ ^^ warrant of attorney ; for the warrant of attorney being pre-
law V. Brown"* ^^^^^^t, will amend the plea roll, and the court will take notice
the Court of ' that it is the same that appeared, (a)

K. B. gave leave to do the very reverse to what was done in this case, viz. to alter the name in
file warrant of attorney to that in the declaration, and this after error brought, and that vari-
ance assigned for error. Dougl. 1 14.]

Yelv. 38. Oro. But if the name of a stranger be put into the plea, this will be
decision here ^ ^^''°''» ^^^ ^t cannot then appear to the court that the same man
re^rrctl to, is that appeared did plead, and then there was no plea pleaded : and

D) fV/iere Proceedi?igs in Civil Causes amendable^ S^c, 211

so if the defendant's name be mistaken in the putting in bis plea, j^at of the
as if in an audita querela^ the plaintifFsurmises that he entered into court of error:
a statute of 300/. to the defendant, for the payment of 50/. per and the reason
annum for six years, to John Bush., a stranger, if the defendant S''*'^" by r^^
comes, and jirotestand., 8)'C. proplac. idem Johannes Bushf instead amendment
of the defendant ; this is erroneous, because it does not appear to could not be
the court that the plea was put in by the stranger, to whom the made in this
payment was to be made, and not to the defendant ; but if the thrmTstake'
plea had been, that the pra;dict. plaintiff venit et dicif, instead of h^d been spe-
the defendant, this will be construed to be the misprision of the cially shewn
clerk, for it is apparent that the plaintiff could not be the defend- for cause of de-
ant; but it shall be supposed to be put in by him that appeared, ^"^t^elow
since there is no other person. and the judg- '
ment of the court had passed upon the cause so shewn, and therefore all araendraents were
ousted.] Cro. Eh'z. 904.

4". Of the Jwy Process, ajid Nisi Prius Roll.

If the venire be of the same place, and in the same action, and Fule head of

between the same parties, all other faults will be amended. Juries.

But if the place be totally misawarded, this is not helped by Vide 4 Ann.

any statute; but if it is only misawarded in part, this is helped ^- \^- §^»J'
U 4^1 jr^,T,io r> r and 24 G. 2.

oy the express words or 21 Jac. 1. c. 13. ^ jg §5^ ^1,3^

the award is to be at large of the body of the county; and 3 G. 2. c. 25. Head ofJwies,
. In ejectment, where the venire was de placit. transgressionis, Jones, S02.
omitting et ejedionis Jirmce, the court held the venire to be ill, ^ Ef^^sss
because it was not in the same action, for an action of trespass Cro. Jac. 528.
and ejectment are different, and there might be an action of Qtusre,
trespass between the same parties ; but if the distringas had been
right, they would have judged this venire to have been null, and
the want of a venire is aided by the statute.

If the jurata mentions the issue to be dej)lacit. transgressionis, ^°' ?'!* ^^*'
where the action is debt, and the award of the venire and dis- 3-4^ 535. '
tringas debt, this shall be amended; for the Jurata is an award (n)The award
of the distringas, in pursuance of the award of the venire, and o" ^^^'I'^^'l^V
the ve7iire being right, the secondary process {a) ought to be ^"J^JJ^ ^^e ve-
made accordingly. nire, and the

venire being right, shall amend the distrmgas, which is the proper process for convening the
jurors in the King's Bench : So of the habeas corpora, which is the Common Pleas proceffi.
Lit. liep. 252, 253.

So if the sheriff return nomina jurat, inter partes prtrdict. de Roll. Abr. 202.
placit. tratisgressionis, where the venire is d[e placit. debit, this ^'"^* ^^^' ^'^^'
shall be amended ; for in dorso brevis he says cxecutio istius brevis
patet, S)-c. which could not be if it was not in the same action.

The award of the venire must be to a day in the same term. Mo. 465. 710.
or to the next term, but it must be in term, otherwise it is Danv.Abr.335.
erroneous.

But if the distrmgas be without the day of nisi prius, or men- ^ ^^''•/^*
tion a wrong day, if the jurata roll be right, the distringas may J ^ Mod ^07
be amended by the jurata roll. 274. Ld.Raym.

95. 511. 2 LdRaytn. U44.
P 2 So

212 AMENDMENT AND JEOFAIL.

Cro Eiiz. 7G0. So if the return of the venire be mistaken, this may be amended

820. Owcn,6'-\ l,y tlie roll ; and if the teste of the venire be out of term, or before

Cro. Jac. 162. pie^i pleaded, it is no error ; for the /r.s/^ of judicial writs being

3 UolL^Abr. on'y niatter of form, shall not vitiate if mistaken.

200.

Vide head o( If the number or qualifications of the jury be omitted in the
Juries. venire, it may be amended by the roll, and the rather, because

these matters are ascertained by the law.
Danv. Abr. If there be a mistake in the christian name of a juror, it is in-

.330. Cro. Eliz. curable (rt), for the statutes do not extend to it, but only extend
f^\n^^% 1 ^° ^^^^ surnames and additions, for there can be but one name
christian name ^^ baptism, but there may be various surnames and additions ;
be wrong in and therefore if it can be proved what person the sheriff meant

the distringas, l)y his surname or addition, it may be amended and set right,
or in the pa-
nel returned, or in the panel of the jiirj' sworn, if it can be proved to be the same man that
was intended to be returned in the venire, having there his right christian name, it may be
amended. Roll. Abr. 196. 197. 3 Bulstr. 18. Hob. 64. Brownl. 174. See 2 Stra. 1 2 1 4.
||See Willes R. 488. 12 East R. 229. 6 Taunt. 460. and tit. Jtuies (I).||

Vide for this If the court on an insufficient suggestion awards the process to

hcid of Juries, ^j^ improper officer, yet this is aided after verdict, for that only
makes an insufficiency in the return of the jury, and insufficient
returns are aided ; for it was the design of the statute, that if the
cause was tried by a right jury, that it should not be material
what officer jjot them together.
8 Co. 166. As to the 7iisi prills roll, which is only a transcript of the plea

C'lrth' 506 ^^^^ ^^ carry the issue into the country, if it differs from the plea
5 Mod 211. *'oll in any matter which does not alter the issue it may be
Salk. 48,49. amended; but if it differs in any matter which alters the issue it
(6) Variance in cannot be amended by the plea roll, because it does not give the
roU^'e^ided J^^'S^ ^^ ^"^^ prius authority to try the matter which is in issue
by the plea roll between the parties on the plea roll, {b)
in indictment for forgery. Barnard. K. B. 132. 2 Ld. Raym. 1518. 2 Stra. 843.

8 Co. 166. As if the issue be on the addition of the defendant's name,

whether J. S. was husbandman die impetrationis Inevis, and the
nisi prius roll be, whether he was husbandman generally, omitting
the words die impetrationis brevis, this is not the issue on the plea
roll ; and therefore cannot be tried.

Brownl. 47. So in a bond conditioned for the payment of a certain sum at

the first next ensuing the date, and on the nisi pi'ius

roll the date be omittetl, this is not the same issue as on the plea
roll.

Dyer, 260. But where the defendant's name is omitted in joining of issue,

this shall be amended by the plea roll, because the issue is not
varied, and the justices of nisi prim have authority to try it by
the distringas.

Roll. Abr. 202, So where in an action on the case upon assumpsit, the defendant
(upon the plea roll) pleads non assumpsit, and on the nisi prius
roll it is Tion adpabilis, after verdict the nisi prius roll shall be
amended by the plea roll, for both pleas traverse the gist of the
action ; and the defendant has the same advantage in the non

culpabilis.

(D) Where Proceedings in Civil Causes amendable, cSjC. 213

culpabiliSi as in the non assumpsit, and the issue is the same in
substance.

So in ejectment against seven defendants, who entered into the Salk. 48. pi. 5.
common rule, and pleaded to issue, the plea roll, venire, distringas Ld. Raym. 94.
mxA jurata "wevQ right; but the issue on the nisi pritis roW w^s IfM^mUio?.
between the plaintiff and five defendants only ; after verdict for
the plaintiff this was amended, for the lessor's title was the gist of
the action, and the only thing inquirable of by the jury.

II So also in assumpsit against two defendants where one had Murphy t.

pleaded the general issue, and the other had suffered judgment Marlow and

by default, but the 7iisi prius roll stated by mistake that the ""^"^ ^^' „ -„
J c \ 111 . 11 1-1 iCamp. K. 6.

same defendant pleaded non assumpsit, and also came and said

nothing, <^c. Sfc. and it did not appear that the other had come

in at all, Lord Ellenborough C. J., on consent of parties, directed

the clerk of nisi j)rius to make the proper amendment.

So also the court gave leave to amend the nisi prius roll by Boys v. Ed-
inserting a special title to the declaration of a day subsequent to "icads, 2 Chitt.
the defendant's coming of age, he having been a minor on the gj^^y pi-'i^sted"
first day of term. V Term R.474.

So also after a nonsuit for a variance in an undefended action, Halhead v.

the Court of Common Pleas permitted the record to be amended Abrahams,

and a ne>v trial had. II Sle'nd!

ing the record to cure variances under the 9G. 4. c. 15. see Picas and Pleading {\i) 5.^
and 1 Moo. & Malk. 359. 253. 3 Car. & P. Ca. 485. 594. 4 id. 22. 24. Tidd (9tU edit.)
Suppl. 127.

5. Of the Verdict.

If the jury find a certain verdict, and it is entered uncertainly (a) Where the
on the record, if the judge who tried the cause remembers cer- jnystea is
tainly how the jury found it, it shall be ascertained by the amendable by
memory of the judge {a), and the verdict may be made certain as *| "^'^^P ^
thejury found it. takelTbyrte

clerk of assize. Moor, G89. Cro. Eliz. 112. Where the mis-entry of the verdict shall be
amended. Vide Cro. Eliz. 677, 2 Jones, 211. Special verdict amended after argument
without costs. Ld. Raym. 335. See Stra. 514. l Lev. 131. Postea amended by judge's
notes. 2 Stra. 1 197. 1 Will. 33. [Where there is a general verdict on a declaration, con-
sisting of different counts, some of which are inconsistent, or bad in point of law, and evidence
has been given on the good or consistent counts only, the verdict may be amended by the
judge's notes. Dougl. 561. 718. Alitor, it seems, if evidence has been admitted on the bad
or inconsistent counts. Id. 562.] ||And accordingly the Court of King's Bench refused to
amend the verdict in an action of slander, where one count out of four was bad, since the
evidence applied equally to all the counts. Holt v. Scholefield, 6 Terra R. 691. But where
evidence was given on both counts and the first count was bad, but it appeared, from the
judge's notes, that the damages were calculated merely on evidence applicable to the second
count, which was good, the Court of Common Pleas refused to arrest the judgment. Williams
V. Breedon, 1 Bos. & Pull. 329.|| [An amendment by the judge's notes, it was formerly
holden, could not be made after judgment. Id. 703. But it seems now, that it may be made
at any time, even after final judgment, and a writ of error brought. 3 Term R. 749. A
mistake in not entering up a verdict ou one of the issues, allowed to be amended by the judge's
notes, after error brought for that reason, and joinder in error. Id. 659.] ||But when the
application was made after a lapse of eight years from the trial, and the defendant had since
reversed the judgment on error for the badness of one count of the declaration, the Court of
King's Bench refused the amendment. Harrison v. King, 1 Barn. & A. 161. But in a late
case in assumpsit some of the counts were bad and some good ; and the jury having found a

P 3 verdict

ei4 AMENDMENT AND JEOFAIL.

verdict for the plaintiff with general damapes, upon evidence applicable to all the counts, the
Court of Common Pleas after error brought, and argument in K. B., amended the postca by
the judge's notes, by entering the verdict for the plaintiff oa the first count, and for the de-
fendant on the others. Richardson v. Mellish, 1 1 Moo. 104. sBing. 334. And they amended
the judgment roll by the amended postea, after the judgment had been reversed, and the
reversar entered of record in the court of error. 11 Moo. 119. sBing. 346. ; and see
7 Barn. & C. 819. S. C. After verdict in ejectment brought for a messuage and tenement^ and
pending a rule to arrest th° judgment, the court will give leave to enter the verdict according
to the judge's notes for the messuage only, without obliging the plaintiff to release the da-
mages. Goodtitle v. Otway, 8 East R. 357. The court will not amend a verdict according to
the^note* of an arbitrator. 1 Chit. R. 283. The application to amend by the judge's notes
should be made to the judge who tried the cause, and not to the court. Ilnd., and 1 Barn. &
A. 161.; and see tit. Verdict (D) and (L).||

Cro. Car. 338. As if in debt for 19/. 105. the plaintiff declares upon a lease of

Eliot and copyhold lands, rendering 38Z. per annum, and upon a lease of

d^' freehold land, rendering 205. per annum, and demands 19/. for

' half a year's rent of the copyhold, and 10s., for the freehold ;

and upon nihil debet pleaded it was found for the plaintiff, quoad

the 105. for the freehold, and for the defendant guoad the 19/.

for the copyhold ; but in the postea it was returned, that they

found for the plaintiff qtioad lOs. part of the said 19/. 105. and

quoad the residue nil debet, so that it was altogether uncertain

which of those rents were paid ; yet if the judge that tried the

cause remembers that, quoad the copyhold rent, the jury found

for the defendant, and quoad the freehold for the plaintiff, the

postea shall be amended accordingly.

Roll. Rep. 82. Also a special verdict may be amended by the minute or

Roll. Abr. 207. notes taken by the counsel or clerk of assize (a\ after a writ of

Hetl. 52. Lit. I 1 /

Rep. 61. Cro. error brought.

Car. 144. 4 Co. 52. Salk. 47. pi. 4. 48. (cr) But though a verdict, general or spedal, may
be amended by the notes in the book of the clerk of assize, if there be a misprision ; yet this
cannot be done in a criminal case. Salk. 53. pi. 19. 47. S. P. Ld. Raym. 141. 11 Mod. 84.
(land Stra. 844. 2 Hawk. P. C. 922. contra.^^ [And see Dougl. 362. where a mistake in the
verdict in a criminal case, was corrected from minutes signed by the jury. In Bunb. 285. a
mistake in a special verdict on an information of seizure, amended bv minutes, after one argu-
ment.] llSee tit. Verdict (D).!|

[The point in But nothing can be added to the minute or notes, though
this clause was never so strongly proved by the evidence, because that would be
upon°in any of ^ subject the jury to an attaint for a fact that was never found
the passages re- by them,
ferred to in the former editions.] || Attaints are now abolished by 6 G. 4. c, 50. $ 60.1|

(E) What Defects may be amended or aided after
Verdict : and herein,

1. Of the Wajit of sufficient Certainty in the Plaintiff's Declar-
ation, 171 not setting fotih his Cause.

For this vide Jk VERDICT cures not only such defects as may be called arti-
head of ^rror; ficial defects, and come within the purview of the several sta-
p!^^UetTcq.' '"*!^ ?^ amendments and jeofail, but also natural defects, or the
and 1 Will. ' omissions of the parties in their allegations, which must be pre-
Sand. 227. sumed to have been given in evidence to the jury ; otherwise they

et seq.noth could not have found a verdict for the nartv.

(5thedit.|| * • ,pj^^

(E) What Defects may he amended or aided after Verdict. 215

The chief intent of all the statutes oi jeofails seems plainly to be,
that the wrong pleading of any collateral matters not essential to
the action, should, after the expense of a trial, and verdict for
the party, be aided, but not to extend to matters of substance,
or whatever is essential to the gist of the action ; for this would
have ruined all proceedings in the courts of justice; besides, had
such essential part been set forth, it might occasion a contrary
verdict; neither can the jury be attainted for a false verdict
on the uncertain allegations of the parties, for it cannot appear
whether the damages given by the jury be proportionable to the
demand or not.

Whatever therefore appears to be essential to the gist of the
action cannot be cured after verdict ; for the law requires that
all substantial facts shall be laid in proper time and place, so that
the defendant may traverse them distinctly if he pleases ; for as
he may traverse the whole, so he may traverse each substantial
part, in order to put the weight of the cause on any one thing
that will put an end to the cause.

But as this matter is more fully treated of under the heads of
Eiror and Pleas and Pleadings, we shall here only observe, that
the difference in all the cases on this head turns upon what is sub-
stance, and what is form; which must be determined in every
action according to its nature.

2. Of Repugnancy and Surplusage.

Surplusage does not vitiate after verdict, according to the
maxim, utile joer inutile non vitiatur ; and therefore, if such sur-
plusage is repugnant to what is before alleged, it is void ; as if in
trover the plaintiff declares that he was on the 4th of March
possessed of goods, and that afterwards, scilicet the 1st of March,
they came to the hands of the defendant, who converted them.

So in ejectment, the jilaintiff declared on a lease made to him
the 3d of iliaj/, and that the defendant 7?os/<7^, scilicet lai o{ MaTj,
ejected him ; this was held good after verdict ; for by the jwstea
it appears, that the defendant committed a tort on the plaintiff's
title ; and when he says a repugnant day, it is as if he had laid
none ; and if no day be laid, it shall be intended after verdict,
that the tort was committed before the action brought; for it
would be very foreign, after verdict, to intend that the action
was brought by the spirit of prophecy, for a wrong to be com-
mitted afterwards; besides, the jury could not take cognizance
of any fact done since the action brought, for that was not in
issue.

In debt on an obligation, the defendant pleads payment of 50/.
l^Jmiii 11 Jac. according to the condition ; the plaintiff replies
quod non solvit 501. jn-ccdict. 1 4* August. a?mo 1 1, suprad. quas. ad
eundem diem solvisse debuissct, et hoc, &c., the verdict found qtiod
non solvit prcedict. 14 Junii p-out the defendant had alleged ; the
objection here was, that no issue was joined, because they do not
meet in the time the money was paid ; but the word August is
plainly surplusage, for when he said quod non solvit prcedict. 14

P 4 " die,

[After verdict,
the insertion in
some ot the
counts of the
defendant's
name instead
ofthcplaintiflfs
rejected as sur-
plusages Wils.
43.}

Vide tit. Pleas
and Plead-
ings (B),
5 "Mod. 286.
Ijand tit. Ver-
dict (X).||

II Vide tit.
Pleas and
Plcadinss (I),

4.11

Cro. Jac. 97.

428.

Yelv. 94.
Garth. 288,
289.

Cro. Jac. 549.
[See Cro. Jac.
585., where
such a va-
riance in the
cpiatituvi of
the demand
was holdcn to
be fatal]

S16

AMENDMENT AND JEOFAIL.

Where the
plaintiff may
release such
repugnant

die, it is a sufficient traverse without the word August^ and August
is plainly repugnant to the word prccdicLy for pradict. refers to
June : and such surplusage being a repugnancy to what was be-
fore material, was idle and void.

But if there be a repugnancy in any point material, there it is
not helped by a verdict, unless the verdict appears to have been
given on a different part of the declaration.
part,"r«/e Sand. 282. 886., and head of Pleas and Pleadings.
Cro. Jac. 264. If the replication be repugnant to the declaration, it makes the
Sand. 116. declaration bad, because the subsequent pleading falsifies the de-
claration ; as if a man declares on a bond made 1 Mariti, if the
plaintiff replies that the bond was delivered 30 Martii^ this falsi-
fies the declaration ; because it could not be made the first ; so if
the rejoinder falsifies the bar, the bar is vicious.

3. Of Insifffkiency in the Defendanfs Bar.

Cro. Elix.778. As the plaintiff 's action must have all essentials necessary to
maintain it, so the defendant's bar must be substantially good;
and if the gist of the bar be naught, it cannot be cured by a ver-
dict found for the defendant; but it found for the plaintiff, he
shall have judgment, either for the badness or falsehood of the
bar; but if it be bad only in form, a verdict will cure it : and if
the gist be traversed, all collateral circumstances will be intended
after a verdict.

Thus in an action of debt on a single bill, the defendant pleads
• payment without an acquittance, and it is found for the defend-
ant, yet he shall not have judgment, because the gist of the plea
IS bad, since the obligation is in force till dissolved eo ligamine
quo ligatur, and the acquittance under the seal of the plaintiff is
the gist of the bar; but if it had been found for the plaintiff, he
should have judgment, because the bar was not only bad in sub-
stance, but found false.

.- ?"^,^^ ^^^ ^''^^ b^ o"Jy bad in form, a verdict will supply it : as
it in debt on a bond conditioned for payment of 100/. 25 Junii
prox., and the defendant pleads payment on the 20th o^ June,
and it is, according to the plea, found that he did pay it the
20th ; though this bar be bad in form, because it does not follow
the condition, and the plaintiff might have taken advantage of it
on a special demurrer, yet the verdict having found payment be-
Jore the day, that m law is payment at the day, and the substance
IS found. *'

4. Of immaterial and informal Issues.

A verdict cannot help an immaterial issue (a); for if what is
material m the pleadings be not put in the issue, it is not made
necessary to be proved on the trial ; or if it be alleged and proved,
yet It It appear insufficient, so as not to be decisive between the
parties, the verdict will be no good foundation for the judgment ;
but an infoi-mal issue is helped by the verdict.

the pleadings is npt traversed, but an issue taken upon such a point as will not

determine

5 Co. 43.

Mo. 692. Cro
Jac.377.S.C.
cited.

F«fchead of
Pleat and
Pleadings (I).

ll^Vide iM.Pleas
and Pleadings
(M).l|Lev.
32. Carth.
371. (a) An
hnmaterial
issue is where
what is mate-
rially alleged by

(E) What Defects may he amended or aided after Verdict. 217

determine the merits of the cause; and an informal issue is where it is not traversed in a right
manner. Brownl. 229. Cro. Eliz. 227. 2 Mod. 1.37. 10 Mod. 19. 11 Mod. 2. Ld Raym. 16S.
2 Stra. 933. 2 Barnard. K.B. 55. 2 Stra. 1011. p Bos. & Pull. 348.11

If the plaintiff declares on a promise to find the plaintiff, his 3 Leon. 66.
wife, and two servants, with meat and drink for three years, on Kirlee and
request ; the defendant pleads that he promised to find the plain- 195 /g q
tiff meat, S,x. absque hoc, that he did promise to find, S^c. for three cited. Godb.
years next following, and hoc petit, SfC. and verdict for the 56. S. C. cited,
plaintiff; yet he shall not have judgment, because the promise
in the declaration is laid to be on request, which promise is not
traversed in the same manner ; besides the plaintiff in his replica-
tion alleges a promise next after he was married, which is not the
same the defendant traversed ; so that they are not at issue a point
traversed in bar, since the bar is for a contract for three years on
request, and the replication for a contract for three years next
ensuing the marriage, and non constat by the verdict, which of
the contracts was proved on the trial.

So in trespass, the defendant pleads an accord between the Roll. Rep, 86.
plaintiff and J. S. of the one part, and the defendant of the other
part ; the plaintiff replies quod non hahetur talis concord, between
the plaintiff and defendant, qualis the defendant had alleged ; and
issue joined and verdict for the plaintiff; yet he shall not have
judgment, because he does not traverse the same accord that is
set out in the defendant's bar, but puts another accord in issue,
not alleged in the defendant's bar, viz. between the plaintiff and
defendant only.

So in debt on a bond conditioned for the payment of 105/. the Cro. Jac. 585
defendant pleads payment of lOOl. secutidum Jbrmam et effectum Sandbank and
conditionis : the plaintiff replies, non solvit jprcsdict. 105/. this is Turvy, Cro.
an immaterial issue (a), not aided, for the plaintiff has not tra- a^'a^^I
versed the same payment that is in the defendant's plea. error." Hob^°"

173. S. P. adjudged, (a) But where an issue is decisive between the parties, though not so apt,
it shall be cured after verdict. Vide 2 Jon. 184. Cro. Jac. 44. 435., and heads of Error, and
Pleas and Pleadings ; jjand see 2 Will. Saund. 519. a. b.j|

If an issue be on a point that is impossible in sjihstance and Cro. Car. 78.
nature of the thing, it is not cured by the verdict ; but if it be P"''ch<ise and
only impossible in the manner and Jojin of it, a verdict will cure j 40 s C '
it; as in debt on a bond conditioned for the payment of 100/. on Latch. 158.
the 31st o? September, and defendant pleads payment at the day, S. C. Noy, 86,
and it is found against him, the plaintiff shall have judgment: 86.S.C. ad-
because the payment is what is material, and the day impossible, ^ °^' '
and is altogether idle and void ; for not being paid before the end
of that month, the obligation is absolute. *

In an action of assault and battery, the defendant pleads that Sid. 444.
the plaintiff neglected his service, per quod moderate castigavit : Vent.70.2Keb.
the plaintiff replies, quod non moderate castigavit, and the issue ^'^s- (i) Where
found for the plaintiff; though this be an informal traverse, ^n rnegSe"^
being (6) rather a traverse of the chastisement, than of the pregnant,
moderate manner of doing it, and the right traverse should have though bad on
been de tnjurid sua propria absque tali causa ; yet after verdict it ^ Jeniurrer, is
is good, because the jury have ascertained that he did not beat §5S. ViZcTo
him moderately. jac' 87. and

head of Pleas and Pleadings, (16.)

S18

AMENDMENT AND JEOFAIL.

Noy, 56.
2 Jones, 184

pleaded to an
tuttimprit, yet
the plaintiff'
had judgment,
though an im-
proper plea,

In an action of debt, if not guilty be pleaded, and there be a
verdict for the plaintiff, it shall be aided by the statute; because
'mltv wa3 "^^ being an ill plea {a), and a false one, the plaintiff ought to have
■ • • his judgment, both for the badness of the plea and for its false-

hood ; but if the verdict had been for the defendant, yet the
plaintiff should have judgment, because the declaration is not
answered by the plea, (b)

Cro. Eliz. 470. |l2 Salk. 7.'54. 2Stra. 1022,|| 2 Roll. R. 368. fOM/. }n debt
against an executor upon the bond of his testator, the defendant pleads non est factum, &c.
Hardr, 458. In an action of covenant, on a covenant that C. was seised in fee, and assigns
for breach that C. was not seised in fee, et sic infi-egit conventionem ; though, in covenant, the
defendant ought to traverse either the deed or the breach, and both cannot be involved in
non fregii conventionem, because the gist of the action lies on the deed, which must be
traversed by itself, yet when the defendant pleads a bad |jlea, which is found against him,
the plaintiff" may have judgment either for the insufficiency or falsity of the plea. Sid. 289.
Lev. 183. S.C; CTcfe Moor, 599. Cro. Eliz. 457. 2 Leon. 116. S. P. (i) Qm. If in debt on a
penal statute, as for not setting forth tythes, for usury, &c. not guilty would not be a good
plea, though nil debet is the proper, formal plea. 1 Term R. 462.]

Roll. Abr. 200. If on an issue tendered by the plaintiff, the defendant joins the
Yelv. 65. S.P. scilicet {a) by the plaintiff's name, or the plaintiff joins the scilicet
by the defendant's name, to an issue tendered by the defendant,
this shall be amended, there being a negative and affirmative
before, between the plaintiff and defendant, which is the pattern
whence the joining that issue is to be taken ; there is a sufficient
copy whence this may be amended, it being, from the nature of
the thing, a plain mistake of one man's name for another.

upon an information. Stile, 167. ||(c)This is a mistake for similiter. In a case, 2 Stra. 1117.,
where a similar error appeared at the trial, the Chief Justice dismissed the jury ; but in a sub-
sequent case the court refused to arrest the judgment on this ground. 5 Burr. 1793.;
and the want of a si7nililh' is now held amendable. Cowp. 407. 2 Chitt. R. 25.; sed vide
3 Bro. & B. l.jl

Cro.Jac. 67
adjudged.
Cro. Eliz. 752.
S. P. adjudged.
Palm. 524.
S, P. per cur.
Misnomer in
joining issue

(F)

Of amending the Judgment.

Leon. 134. TT is a general rule, that the court will make no amendment
^^^'^^^' that will defeat a judgment, the statutes allowing amendments

367. 520. Ld. *" affirmance of judgments only.
Raym. 565. 5 Mod. 16. 69.' Comb. 354. ; but see now 5 G. 3. c. 13. supra.

Roll. Abr. 537 But in affirmance of the judgment, the judgment itself may be

set right and amended by another part of the record, in a fact

which appears to be the misprision or neglect of the clerk, as in

the mistake of the names of the parties ; so in debt against A. and

the judgment is quod pi-adictus B. capiatur, when it should have

been prcedict. A.y this shall be amended.

So in an action brought by Robert Meredith^ and the judgment

as entered, was quod predict. Carolus Meredith recuperet^ and the

court held this amendable, being only the fault of the clerk, the

misprision being only in the name, which was right in the rest

see Cowp. 841. of the record, which was before the clerk, and should have
where the j- » i i •

Court of directed him.

King's Bench, in this country, amended a record in ejectment from thence, by enlarging the
term.] Vide several cases to this purpose, Cro. Eliz. 400. 864. Hob. 327. Moor,561. 697.
Hut. 41. Brownl. 56. Raym. 39. Comb. 64.

Vent 217.
[This case was
on a writ of
error from
Ireland: and

(P) Of amending the Judgment. 219

So if in an action of debt upon an obligation against Rob. H. ^ ^, ^
conditioned that if Henry H. or Rob. H., the defendant, should pgiham and
pay, ^c. judgment is entered that the plaintiff recuperet debit7im ct Heming. A
damna against the said Robert^ et ■prcedictus Henricits inmiseri- judgment ^worf
cordia ,- where it should have been Robei% for Henry was no ^^^^f^fj^^J^eT
party to the record ; this shall be amended, for it is only the instead of '
mistake of the clerk. pnedict.

Arthurus, iimended after twenty years' standing. 4 Mod. 371. 12 Mod. 384. 2 Stra. 1132.
1156. 1182,

As to amending the judgment by the docket, it is to be Cro.Car.574,
noted, that before the statute 4 & 5 W. & M. c. 2. which, for ffj^'^gf ^*
the security of purchasers, requires that all judgments should be i Wils.ci.
docketed, the courts used to amend both the judgment and the 2 Stra. 1209.
docket, where there were sufficient instructions to amend by; but
now the docket cannot be amended ; and therefore if there be a
false docket, which is as none, though a right judgment, the pur-
chaser is safe, and the party grieved must take his remedy against
the officer for not docketing it truly.

In a qiiare impedit for the presentation of a vicarage, and the Hob. S27.

judgment is quod recuperet ecclesiam, this shall be amended (a). Hut, 41. Cro.

beinjr the mistake of the clerk, who had sufficient instructions ^^^-^^f' ^: ^•
n ° I . ^ ^ -A. • \ I (a) So in debtfl

iTom the posiea to enter it right. where the

judgment was entered qicod recuperet the sum in the declaration, pro misis et custagiis,va%tea.6i of
pro debito prcedict., and amended. Vent. 132, In debt against an attorney by bill, the judgment
is quod querens nil cajnat per breve, where it ought to he per billam, yet it shall be amended.
Roll. Abr. 206. Cro. Car. 580.

So if judgment be against a man and his wife, and the judg- Hob. isr.
ment is that the wife is m misericordia, and not the husband, this Mo^'N ^^^•__
is amendable by the paper-book that is right. Brownl.ie?^'

Roll. Abr. 206. 215. S.C.

In ejectment brought by two, if judgment be entered that the 2 Jones, 199.

plaintiffs recuperet, this is a plain mistake of the clerk, and shall l- '^ J""=!-
\ -x •> ^ ment was en-

be amended. te,ej ^^^^^^

executors de ^onw ^>;'opriw instead o'i de bonis testatoris, and error brought upon it; this being
considered as merely the blunder of the clerk, was amended after argument in the Exchequer-
chamber. 5 Burr. 2730. 2 Lev. 22.] jjAnd see Green v. Rennett, 1 Term R. 785. But where
an executor pleaded a false plea of judgment recovered, and the plaintiff entered up the judg-
ment for debt and damages de bonis testatoris, et si non, de bonis j)ropriis, and words were after-
wards interlined (it did not appear by whom), by which the judgment de bonis proprtis was
confined to the damage alone, the Court of C. P. refused, on motion, to strike out the words
interlined, the judgment being of six years' standing, and the amendment going to Jix the
executor's liability, whereas in the case in 5 Burr, it was to discharge it. Burroughs v. Ste-
phens, 4 Taunt. 554. 1 Marsh. 21 l.H

If the damages de incremento be mistaken hj the clerk (6), the j^ n ...
court will amend it by the judgment-book, because that was a (i) As wliere
sufficient instruction to the clerk to have entered the judgment the jury found
by, and therefore it was his misprision not to go according to his ^?^ ^^^ P'*'*'"
instructions, which may be rectified and amended. 2* d^aln '^^^

and so much for costs, and the clerk, in entering thereof, says 2*. for damages, and so much for
costs, and so much pro incremento, qua: in toto se attinguni to so much ; in which sum the 2s. is
not comprehended, this shall be amended. sBulst. 114. 8 Co. 162. Palm. 509. Dyer, 55.
Roll. Rep, 272.; and vide like amendments in declarations, where the total sum is miscast.
Bulstr, 171. 179. 2Bulstr. 149. Yelv. 5. Noy, 44. Poph. 209.

II Where the jury by mistake gave damages in a penal action Hardy v.

in Cathcart,

220

AMENDMENT AND JEOFAIL.

Pickwood V.
Wricht, 1 n.
Black. 642.
Usher V. Dari'
8cy, 4 Maule
& S.94.; and

Dunbar v.

Hitchcock,

5 Taunt. 820.;

and see

2 Taunt. 554.

5Chitt.R.30.

1 Marsh. 180.; in the Common Pleas, and error was thereupon brought, the
and see Good- Court of Common Pleas allowed the plaintiff to amend, by
title V. Otway, entering a remittitur of damages on the record, and making the
8 bast, 3 . transcript conformable.

And where a verdict is given for a greater sum than the
amount of damages laid in the declaration, and for that cause
error is brought, the court will allow the plaintiff to amend the
judgment and transcript, by entering a remittitur for the excess,
on paying the costs of the writ of error,
see 2 Barn. &C. 902. 4 Dow. &Ry. 566. 11 Price, 410. 3 Bing.346. 2 Chitt.R.24.

Where the defendant was entitled to treble costs under the
Mutiny Act, and entered up his judgment for treble costs gene-
rally, without stating on what ground he was entitled to then),
the Court of Common Pleas refused, after error brought in the
King's Bench, to amend the judgment by striking out the word
« treble."

But a writ of error being afterwards brought from the King's
Bench into the House of Lords, the Court of King's Bench, on
motion, allowed an amendment to be made, by inserting the cer-
tificate of the judge who tried the cause, allowing the defendant
treble costs.

Where a general verdict was given in Common Pleas for the
plaintiff on a declaration consisting of several counts, some of
which were bad in law, and the evidence applied to all the
counts, and the Court of Common Pleas, after eiror brought
and after argument of the error, amended the postea by the
judge's notes by entering a verdict for the plaintiff on the first
count, and for the defendant on the others, and also amended
the judgment roll in Common Pleas by the amended postea
a/?£7- judgment had been reversed in the King's Bench; it seems
that the court of error (King's Bench) was bound to amend the
record by the amended record of the Common Pleas. |i

In ejectment, if the judgment is entered quod querens recuperet
the damages and costs, and not quod recuperet tcrminum^ as the
case is, this shall be amended, though this be but an action of
trespass in its own nature.

If a judgment be given on demurrer against the plaintiff, and
the entry of the judgment is of a nonsuit mstead of a judgment
in demurrer, this shall be amended.

^^ ^^ '^^'^"^^"''^ 1^^^^' '*" ^^^ entered quia placilum cstsufficicns in lege, instead of quia minus
ttiffidens est, and the court held this not amendable (though it was right in the paper-book
between the parties); but Popliam and Granville contra. Owen, 19. And Qu. If those contra
were not right ?

2Sand.28f). If in replevin the defendant demurs to the plaintiff^s plea in
and^Loncvil?e ^^^ *° ^^^ defendant's avowry, and judgment is entered quod visis
amended after' J^'^niissis, &c. vidcturjusticiariis quod placitU7U prcedict., &c. mi?ius
a writ of error sufficiens, &c. but these words, ideo considaatum est quod the
broiight, and plaintiff nihil capiat per breve suum, sed sit in misericordia et
ment affirmed V^^^^^^' defendant eat hide sine die are totally omitted, yet this
accordingly. shall be amended.

Raym.39.S.P- cited. Sid. 70. cited. [Where, in replevin, the defendant niade cognizance
for rent in arrcar, and the jury fotind for him, and damages to the amount of the rent

claimed

3 Maule &S.
591.; and see
Tidd. 942.
(9th edit.)

Mellish V.
Richardson,
7 Barn. & C.
819. The
amendment
was made in
the record of
King's Bench,
and the case
is now pending
"before the
House of
Lords.

Roll. Abr. 206.
IJSee 8 East,
357.11

Roll. Abr. 205.
In the award
of a repleader
for the error

(G) ^/ tvhat Time the Amendment must be made, &;c. 221

claimed in the cognizance ; but did not find either the amount of the rent in arrear, or the value
of the cattle distrained, and judgment was entered for the damages assessed, he was permitted
to amend his judgment, and to enter a. ]\idgmei\t pro retor no habendo. Rees v. Morgan, 3 Term
R. 349.]

If judgment is given upon a demurrer, and a writ of enquiry 3 Mod. 112.
awarded, but in the entry thereof upon the roll, these words j)er
sacramenium diiodecim prohorum et Icgalium liominum are left out,
this shall be amended.

In debt upon a muhiatus the judgment was entered up as of Salk. 50.
Hil. term 1700, whereas the borrowing appeared to be 2 April phis. Par-
1701. After error brought it was moved to amend the judg- ^ons and Gill.
ment by the papei'-book signed by the Master, which was the 2d gg^^ c^. r.
o^ Janumy 1700, and allowed to be amended ; for it is but a slip 117.
of the clerk, who should have perused the paper-book signed by
the master, which is authentic enough to amend by.

But if there be a mistake or error in the judgment in any such Cro. Eliz. 497.
matter in which the clerk has no instructions ; as if before the ' ^^'
16 & 17 Car. 2. c. 8. a capiatur were entered for a misericord ia,
or e converso ,- this was error in the judgment, because before the
statute it made a fine to the king, and a difference in the execu-
tion ; and there being no instructions in the record itself, or in
the judgment-book, whereby to amend it, it did not appear 12 Mod. 104.
whether it was the error of the clerk in the entering, or of the ^ ^^'- ^^^ym.
court in giving the judgment, and therefore could not be amend- ,„)^'-f^(y([
ed (a) ; but may now by 16 & 17 Car. 2. c. 8. and the 5 W. & Carth. 167.
M. c. 12. takes away the capiatur fine, in actions vi et ay-mis,
therefore no capiatur shall be entered against the defendant, nor
any thing in lieu thereof, {h) (*) Carth. 590.

(G) At what Time the Amendment must be made : *

and therein of Records removed out of inferior
Courts, and paying of Costs.

TT seems to be the established doctrine of the courts, to allow Salk. 47. pi. 1.

the plaintiff to amend his declaration at any time(c), whilst (c) And by

the cause is in paper, on payment of costs, and giving the de- Style's Pract.

fendant liberty to alter his plea, because the pleading in paper plf^fntiff" * '*'•

came in only instead of the ancient way of pleading ore tenus, and amend his dc-

in pleading ore tenus the record was only mjieri ,- but after the claration,

pleadings were entered on record, if it were not a record of the tliough it be

same term, it could not be amended or altered. „„,. „"^^^*^u

' past smce he

declared, if it be but in paper, paying costs, or suffering tue defendant to imparl till the next

term after. After plea pleaded, and the replication and rejoinder to part, and issue, notice of

trial with proviso as to the other, and rule served to make up the issue to carry it down to

trial, and the nisi prius roll ingrossed in parchment; all the proceedings above continuin-i' in

Eaper, the plaintiff had leave to amend upon payment of costs. Faresl. 156. 8 Mod. 226.
d. Rayin. 95. 1 IC. 134. 183. 548. Vide Salk. 47. pi. 3., where Holt said, that he had known
an amendment made, not only after plea pleaded, but after the record was sealed up, just
even when it was going to be tried. The defendant cannot amend his plea after issue joined
or demurrer thereto; for by this he delays the plaintiff, which may turn greatly to his prdudice!
Style's Pract. Reg. 49. Lord Raym. 669. 679. 683. Stra. 11. Salk. 179. Lutw. 1218.*

* The courts have, in many cases, suffered the defendant, on payment of costs, and submit-
ting to terms, to amend his plea after demurrer, and even after argument, where leave was
prayed before judgment given ; i. e. where dcfcnilants had merits.

9A%

AMENDMENT AND JEOFAIL.

If the plaintiflf declares, and the defendant pleads, and the
plaintiff replies, and the defendant demurs, and the plaintiff
joins in demurrer; yet the plaintiff may move to amend oh pay-
in*' of costs, if the cause be still in paper; so may he withdraw a
demurrer not entered of record, and move to amend.

But where the plaintiff declared against J. G. knight, the de-
fendant pleaded in abatement he was a knight and baronet ; and
the plaintiff' replied that he was knight, 4^c. on motion to have
it amended upon payment of costs, all being in paper, and that
the action being by bill the addition was not material; not being
within the statute of additions it was: denied, there being nothing
to amend by, and the defendant had taken (a) advantage of the
fault.

Salk. 50.

Le|>cr»l ami

Germain.

(fl) Where,

after a deimir-

rer, the court

cannot give

leave to

amend, tide

Bulstr,204.

March, 1. Yelv.38. Cro. Jac. 13, 14. Leon.28. Sid, 54. 107. Raym.231. 2 Vent. 142. sLev.39.

2Bulst. 149. 3 Mod. 235. Ld. llayni.669. 679. 6 Mod. 265. 510. Fitzgib. 195. 2 Stra. 890.

Barnard. K. B.408., where, after issue joined, or plea pleaded, and where not. Vent. 356.

StyleR.33. 85. ; but see the last note to the first clause. [A mere clerical mistake in the

return to a mandamus, may be amended after the return has been filed. Dougl. 130. Rex v.

the Mayor, &c. of Lyme Regis. 1 Stra. 273. A declaration in quare impedit was allowed to

be amended after the defendimt had craved oyer of the writ, and pleaded a variance between

the writ and count. 2 Wils. 118.]

3 Lev. 347. An action was brought by the master on the statute of Win-

Be«ircroft v. ^^^^ f^^. ^ robbery committed on his servant, in which he de-

Bamham and c'^J*ed of an assault and battery done to himself, (though then
fifty miles from the place,) also that he made oath that he did not
know any of the persons ; the issue was entered of record, and
the jury appeared at the bar ready to try it, but being for other
business adjourned to another day, the plaintiff observing his mis-
take moved to amend, by declaring of a robbery on his servant,
S)C. and it appearing that the year in which the action must be
brought was expired, and consequently the action must be lost,
if not allowed ; the court after long debate, and consideration of
former precedents, admitted him to amend.

So where in assumpsit an executor laid the promise to be made
to his testator, and the defendant pleaded the statute of limit-
ations, and on motion to amend and lay the promise to himself, it
was objected, that this would alter the nature of the issue {h),
and take away the party's defence ; yet it appearing that by the
expiration of the six years the action would be lost, the court
gave leave to amend.

Stone.

Hil. 4 G. 2.
The Duchess
of Marlbo-
rough and
Wigmore.
Fitzgib, 193.
2 Stra. 890.
Barnard. K. B.

408. (jb) If

the issue shall be changed thereby there shall be no amendment. Lit. Rep. 349. Hetl. 164.
Moo. 681. 2 Roll. R. 312. [Where an executor had pleaded a former judgment recovered,
but by mistake had stated a less sum than the judgment was really for, the Court of C.P.
gave leave to amend, though the record had been made up near three years ; but they at the
«ame time permitted the plaintiff to reply -per fraudcni. Scutt v. Woodward, executor, 1 H.
Black. R. 238.]

If the bill on the file be with blanks, or the imparlance roll
be with blanks for dates or quantities (c), yet it may be amended
by the paper by the clerks themselves until a recordatur be or-
dered of the verdict returned on the nisi prius roll ; but after
such recordatur it can only be amended by the court (r/), for the
roll lies with the prothonotary, to be made up according to the
pat>er-book, until the recordatur of the verdict be allowed ; but

Lit Rep. 278.
Cro. Jac. 142.
365. 2 Leon.
120. Hetley,
142. Latch.
164. 2 Mod.
316. 12 Mod.
8. 684. Stra.

(G) At what Time the Amendment must be mcuky (§r. 223

if after the rccordatur be entered, it is ordered on the roll in statu i^s- 2 Stra.
quo tunc, and then the court is supposed to take cognizance of it, ?.''^* ^rr,*.
in what manner it then was, and if the clerks might afterwards 2 Stra. 947. *
aker the roll after entry of the verdict, they might amend it in (c) So in an
the verdict which is on the nisi prius roll, and it cannot be altered ejectione
but by rule of court. y»-«^, where

•^ the bill was

with blanks for the quantities of land and meadow. Roll. Abr. 207. 8 Co. 162. (d) Raym.
55. S. P.

The inferior court whence the record is returned, whether Cro. Eliz. 435.
it be by the Common Pleas, or another court of record, may 459. 677.
amend after iudgment, as well after as before a writ of error 2R0II. R.471.

. • 8 C'O 162

brought, and the rule of such amendment is to be certified by ^^q'j. 407.

the clerk of such inferior court to the superior; for though the Hob. 327.

record is removed by writ of error, and a mittimus recordu7n Hut. 41. Roll.!

is entered on the roll, yet the writ of error is to send the record ^HV"^^' ^^^"

..... 1 Salk 49

in the state and condition in which it ought to be by law, and gjoiies 212.

that is corrected from all misprisions of clerks; or on alleging ygTermR.

diminution the record is to be sent up amended as it ought to be, 549. 7 Term

or it may be amended in the superior court, if the other refuseth ; •^^'**

for as it superintends such inferior courts, so it may correct the ^ Maule & s'.

misprisions of the clerks of that court. 591. 5 Taunt.

820. 5 Bro. & B. 66.JI

But there is this difference, where the clerks carry the rolls Cro. Car. 410.
of amendment to a superior court, and where diminution is
alleged, and a certiorari thereon issues : for when the clerks bring
up the roll, it appears to have been amended by the date of the
rule after error brought; but when diminution is alleged, they
bring up the record in statu quo the certim^ari finds it ; and there-
fore when it is brought up they will intend it to be amended at
the time of the judgment given, and that the transcript first sent
up was a dimiiuition and a mistake ; and therefore if dower be
brought against an infant, who appears and pleads by guardian,
he ought not to be amerced, lor an infant cannot be amerced
for his indiscretion ; nor a guardian, because he is appointed by
the court : so this is error in the judgment itself, which is not
amendable ; and if certified by the clerks of the court to have
been amended after error brought, could not have been amended ;
but yet certified to the certiorari rightly amended, they will sup-
pose it was amended the same term judgment was given, and
during that term, whilst matters are in^fieri^ they can rectify not
only the misprision of clerks, but their own misti.kes.

If a writ of error be brought, the defendant in error shall pay 3 Lev..")44,
all the costs of the writ of error, because until the record was ftf '^'^'t^'
amended, the plaintiff in error had sufficient reason to bring the uTicli's IVac. '
writ ; but then the plaintiff in error must nonsuit his writ ; tor if 772. (sth
he proceed to reverse the judgment on any other error, there the edit.}||
defendant shall not pay costs for his amendment, because it is
plain that the plaintiff did not depend on the error the defendant
had amended.

II Formerly it was holden, that where an indictment was re- Fan'kjier's
moved by certiorari into the King's Bench, a mistake of the g^'^' ^^"^

clerk

2U AMENDMENT AND JEOFAIL.

clerk in certifying the caption might be amended in the same'

term in which it was certified, but not afterwards.

Rex V. Chris- But in a subsequent case, in 24 G. 3. the defendant being in-

topher Atkin- Jjcted for perjury at the Middlesex sessions of oi/er and teiinijier

r"orted in '" Fehnim-y ] 783, removed the indictment into the King's Bench

1 Will. Saund. in Eastci- term following by certiorari. It was returned with a

249.8. n.(i); caption not properly applicable to the sessions of oyer and ter^

and see also ininej\ or to the sessions of the peace, the caption stating, that

Cro. ^^'fc. (t ^ fjeneral session o^ oiier and terminer hoklen, ike. before W.
Compan. 400. ,_„*'„ . i'^, .. o ■ i . i ,i

(9th edit.), ^' &c. &c esquM'es, and others, justices, d)X. assigned to keep the

and The King peace, &c. and also to hear and determine divers felonies, tres-
V. Darley, passes, and other misdemeanours, ^'c. Sfc. by the oath of G. C.
^ ^74. ^^^ ^.^^ (naming them) good and lawful men, Sfc. Sfc.^' The defend-
ant was found guilty on this indictment ; And in Easter term
1784 Bearcroft moved in arrest of judgment, 1st, because it
appeared that this was an indictment for perjury at common
law found before justices of the peace, who have no jurisdiction
in such case. 2d, That the names of the jurors did not appear
on the record. Afterwards, in the same term, the Attorney
General moved to amend the return to the certiorari, by insert-
ing the commission of oyer and terminer; and names of the
justices, according to the fact appearing by the commission, and
by the minutes of the court, and that the caption might be
amended agreeable to the return and by inserting the names of the
jurors ; and it appeared by an affidavit of the clerk of the peace,
and his clerk, and the crier, that the sessions of the peace, and of
oyei' and terminer for Middlesex, were holden at the same place,
and in the same court, but opened and adjourned by separate pro-
clamations; the jurors under both commissions were the same
persons ; that at the sessions, or soon after, entries were made in
the sessions-book of proceedings at the sessions ; and that in-
dictments under both commissions were put together on one file ;
and that in making returns to writs of certiorari, it was the prac-
tice to take the indictments off the file, and transmit them to the
King's Bench. And if the indictment were under the commission
of oyer and termitier, a printed form of caption, stating that com-
mission, was prefixed to the indictment; if under the commission
of the peace, a printed form of caption of the session of the
peace was affixed ; that long before, and at the sessions when the
bill was found against the defendant, the clerk of the peace was
unable to attend from illness, and his business was executed by a
junior clerk ; tliat eighteen justices were present, ten of whom
were in the commission of oyer and tei-miner ; that the indictment
was immediately entered in the rough calendar, and afterwards
copied in the sessions-book; and when the certiorari was deliver-
ed, the clerk through mistake took a return of the caption of
the peace, and inserted the words oyer and termina; which he
thought would make a proper return. Lord Mansjield in de-
livering the opinion of the court, considered the return of the
caption as a mere ministerial act, which, according to Philips v.
1 Stra. 13G. Smith, was amendable at any time, and distinguished this from
the cases cited for the defendant, since this was not a motion to

amend

(I) Of Amendments in Equiti/, 225

amend the original caption, but only the returned caption : and
as the names of the jurors and justices appeared on the original
minutes, there was suflficient to amend by : and Rex v. Alcocic
was a clear authority that wherever a transcript only was re- l Sid. 155.
turned, any mistake therein may be amended by the original
record ; and accordingly the rule for the amendment was made
absolute; and judgment being given thereon, a writ of error was
afterwards brought into the House of Lords, and the amendment
assigned for error, but the judgment was affirmed by the unani-
mous opinion of the judges then present, 11 July 1785.11

(H) Where Records defaced by Design or Accident
will be set right and amended.

TF any part of the record be vitiated by razure, the court will RolLAbr. 208,

restore it by amendment, because the wickedness of any per- ^09. Latch,
son in corrupting the records of the court, ought not to obstruct p^^ ^ 1 95
the justice of the court, or prejudice any of the parties; as in s.C. "
ejectione firmcB {a)^ the lease was made tke 10th of Ma^; after (a) 2 Roll. R.
verdict for the plaintiff it was made the 1 1th of May by a razure ; ^o, 8I. S. P.
and it appearing to the court that the declaration M-as vitiated by thoueh^ob-
such razure {h\ they amended it, both in C. B. and B. R. jected, that if

the record should be amended, the delinquent could not be impeached for felony; for to make
it so by the statute, the razure must be such that the judgment be defeated thereby. But,^er
two judges, the razure of the record is the ofTence.and not the annulling the judgment thereby;
and per 1 1 Co. 34. the razure of a record, by which an outlawry was made good, was held
felony, {b) Where in a venire facias the word Chumley was razed and made Himly, and
amended. Roll. Abr. 203.

If an original writ, »upon which a common recovery of several sCo. 160.
manors, S^c. was suffered, being larger than the other writs on Earl of Arun-
the same file, through the negligence of the officer, and by con- ^^ ^^f \°^^
tinual handling, is so obliterated and worn out, that but a letter to"have been
of the names of several of the manors can be seen, but the names adjudged by all
of the manors are truly recited in the count, and in the habere the judges of
facias seisinam, the original shall be amended according to the England, und
other parts of the record. because fcomi

mon recovery. And. 79, 80. S.C. adjudged by all the judges of England; and there is a notd
by the reporter, that all the parchment remained entire, and if not, perhaps it might have been
otherwise ; and vide And. 170.

So if the original, or other part of the record, be stolen, taken 8 Co. 160. b.
away, withdrawn, or avoided by any clerk, though this be felony
per 8 H. 6. c. 12. §3. yet this may be supplied anli amended
by the other parts of the record ; but if such part stolen, S^-c. or
obliterated, cannot be supplied by the record, or any exemplifi-
cation thereof, then it shall not be amended.

[(I) Of Amendments in Equity.

BILL may be amended at any time for the special purpose ^^^^^ ^^^j^
of adding necessary parties. 15. I'pr.Al.*

Cur. Cane. 546. Green v. Poole, 4 Bro. P. C. 1 22. l|See 1 Sim. 500. 1 M'Clel. 62. 1 3 Price,
131. 2 Cox. 393. 1 Ves.jun. 142. 2 Younge & J. 512. 12 Ves. 48. But there is no instance
ol a bill of discovery being allowed to be amended by adding parties as plaintiffs.
3 Mcnr. 74.|| " o J B r r

Vol. L Q ;_ After

22G AMENDMENT AND JEOFAIL.

Mitf. Eq. Tr, After the examination of witnesses no part of the pleadings
258. 263., and can be amended but under very special circumstances : but if
the cases (cited j^^ witness has been examined, an amendment has been permitted
in the note)ot ^ i i- .^- i * i

Hastings V. after pubhcation passed.

Gregory, Scac. 19th Nov. 1782., and Sanderson v.Thwaites, in Cane. Tr. 1 781. Anon. Barnard
Ch.Rep. 222. Harding v. Cox, 3 Atk.583. Where a matter has not been put in issue by a bill
with sufficient precision, permission has been given to amend it on the hearing of the cause.
Filkin v. HUl, 2 Bro.P.C. 194.

Earl of Mas- After appearance the bill cannot be amended without payment

serene v. of costs, which are fixed at forty shillings, a sum which the i

Lyndon, court will not exceed, notwithstanding repeated amendments,

291. 1 Eq! unless the defendant state a case of particular oppression.
Cas. Abr. tit. Amendment, p. 1. note. |lSee 2 Sim. & Stu. 1 13. 1 Sim. & Stu. 421. 6 Madd-
314. 9 Price, 205. Coop. 141. See regulations as to allowance of time to amend, 19 Gen.
Order, 3d April, 1828. 14 Gen. Order, same date.H

Ld. Conings- An amendment to a bill has been permitted, after a demurrer
^y J- ^'f I?" to the whole bill has been allowed ; but this seems not to have
2 P. Wms. ' been strictly regular.

300., and V. Baines, in the note. ||PlaintifF before filing replication may obtain an order

for leave to amend bill as of course; but no further order but on special application, 13 Gen.
Order, 3d Api-U, 1828. After plea allowed to part of bill, plaintiff cannot amend his bill with-
out special order to be obtained on notice of motion shewing proposed amendments. 2 Sim.
& Stu. 12. After replication and subpoena to rejoin, plaintiff cannot amend bill without special
application, shewing that using all possible diligence he was not in a condition to apply sooner.
6 Madd. 106. ; and see 4 Madd. 268. As to a second order to amend, see 1 Russ. & Mylne,
p. 1. 79. 80, 81.||

Naoierv Ladv ^"^ there seems to be no precedent of an amendment to a bill,
Effingham, i^ ^ part wherein it was dismissed on the merits.]
2 P. Wms. 401.

lRussell,353. Ijit is not necessaiy to amend a bill for the purpose of in-
troducing facts disclosed in the answer, on which the plaintifi'
means to rely as parts of his ease, entitling him to the relief
which he has prayed.

Ibid. 154. On the hearing of a petition of appeals presented by the de-

fendants, leave was given to the plaintiffs to amend their bill,
by making it either a bill and information, or an information.

Taylor v. After plea of settled account allowed of bill a motion to

Shaw, 2 Sim. amend the bill, by stating facts which tended to shew there wa.s

& Std 12 ^ ' J o f

no stated account, or that plaintiff ought to be allowed to sur-j

charge and falsify, was refused with costs.

Sharp V. Ash- The plaintiff, in a bill for an injunction, must state at once the

ton, 3 Ves. & whole case within his knowledge : but the court, though verv
B. 144.; and • i c i • i " . ,. , . . ' . '^ , "

see 12 Ves. jealous or amendments without prejudice to the injunction, under

458. 3 Madd. circum Stances, permitted even a re-amendment, ascertaining

475. 6 Madd. precisely its nature, and bv clear and positive affidavits that

^M^'ifl!"^ the plaintiff had not a knowfedge of the facts enabling him t)

2 Madd. 471. ,. \.\. , i i °

2 Ves. & B. P"^ ^"^^ ^^^^ ^^ "^^ record sooner.

330. 13 Price, 494. 2 Sim. 14. ,

Holmes v. "^^^^ amendment of a demurrer was allowed under special cu-{

Waring, cumstances, and a mistake.

8 Price, 604.; and see 4 Madd. 207 1 1 Ves. 68. j I

Lowten v. And so also mistakes in the title of an order of sequestrati(^ij

(I) Of Amendments in Equity. ^fSTl

by omission of the words "and others" were allowed to be Mayor of Col-
rectified by inserting the words omitted. sMeriv 395 •

and see 8 Price, 606. 1 Sim. & Stu. 94.

And so a plea good in substance but bad in form may be Merewether v*
amended. Mellish,

13 Ves. 435. ; and see 1 Sim. & Stu. 220. 1 Price, 236.

But leave to amend a plea is not of course ; the amendment y^^^^ ^
must be stated. || Strickland,

2 Ves. & B. 150.; and see 2 Younge & J. 37.

[Where an improper submission was made in the bill of an in- Serle v. St.
fant, the court allowed it to be amended on the hearing of the ^^J Ige.
cause.

Where an answer was prejudicial to a defendant from a mere Countess of
mistake, though such mistake was both in the original and office Gainsborough
copy, upon evidence of the mistake, an amendment was permit- ^•^^^'"^'
ted after the cause had been heard, and after it had been denied ^^ this case ^^'
on a petition and on a motion. the draught

was correct; but where the mistake runs through the draught and the engrossed answer, no
amendment will be allowed. Bishop of Ely v. James, Bunb. 295.

There are no certain rules respecting the amendment of Woodgate v.
answers ; but they are in the discretion of the courts. The ad- ^"^'^''' P^^"
mission of a fact is never allowed to be struck out (a), but on an ^^ j ^ ' q^
affidavit of surprise, or the defendant being ill advised. But Abr. tit.
where an amendment is admitted in the bill {b\ where, through Amendment,
inadvertency a mistake is made, as to a fact or date (c), where P- ^- (") ^^^|p
there is no danger of perjury (rf), where the case depends upon ^ p.Wms.297'.
old documents, lies pretty much in the dark, and new matter is Pearce v.
discovered, which affords the defendant a good defence; the Grove, 3Atk.
courts have allowed amendments to be made, either by striking ^^' f^Vp'.K-^*
out passages, or making new facts, and this after issue joined (e), ^' j^jjj g g^.^^
or upon the hearing of the cause. If new matter has arisen, the p. c. 194.
practice is to add it by way of supplemental answer; for the de- (c) Wharton
fendant will not be permitted to take the old answer off the file, g'^X'^^"^"*
and put in a new one.] (^^ Berneyv.

Chambers, Bunb. 248. Holliday v. Nabb, Bunb. 323. (e) Phillips v. Gwynne, cited in Mitf.
Eq. Tr. 261. But the author adds, that in later cases this indulgence has been refused. How-
ever, in the case of Moggridge v. Hudson, the Court of Exchequer thought that there were
many cases in which it was highly necessary that it should be given. In that case Richards
moved to file a supplemental answer to a bill for an account of tythes, upon an affidavit of
the discovery of new matter. The motion was opposed by Abbot, who insisted that it was
the rule of the court not to suffer a supplemental answer to be pu; in after issue joined. The
Chief Baron admitted the general rule to be as Abbot stated; but said there were many
exceptions to it. That if they were to refuse it, another bill might be filed for an account,
and then it might appear that the plaintiff ought not to have had a decree in this instance, by
reason of the matter now offered ; that tythe cases were entitled to peculiar indulgence,
depending upon old documents, and lying in remote antiquity. Perryn B. added, that he had
known many instances of supplemental answers being allowed in similar circumstances ; but
supposing there were no precedent, the motion seemed so reasonable and so necessary, that
the court ought to make one. Easter Term, 34 G. 5. Where the amendment is not in a very
material point, it may be made without notice ; but where it is, it cannot be made without
notice, and also payment of costs. 1 Harr. Ch. Pr. 307.

HThe practice formerly was, to permit the amendment of an Wells v.
answer in case of mistake : now a supplemental answer is put in. Wood, loVea.

Q 2 But 401.

Q2S

ANCIENT DEMESNE.

But where there is a mere mistake in a name the answer has
been allowed to be taken off the file and resworn. ||

Dolder
V. Bank of
England,

10 Ves. 285. Jennings v. Merton College, 8 Ves. 79. Strange v. Collins, 2 Ves. & B. 163. Tay-
lor V. Obee, 3 Price, 83. ; sed vide 1 Madd. 269. Griffiths v. Wood, 1 1 Ves. 63.

Earl Vemey v. [An answer shall not be amended after an indictment for per-
Macnainira, jury preferred or threatened. Yet if there were circumstances

1 Bro. Ch.R. extremely strong to shew that it was only a mere mistake (a), it
V. Lord might be otherwise.

Waltham, cited, Ibid. Woodgate v. Fuller, Barnard. Ch. R. 51. Wharton v. Wharton,

2 Atk. 294.

Striidwick v. An infant may amend his answer when he comes of age, and

Pargiter, therefore no exceptions can be taken to it.

Biinb. 338. . ^

Griells v. Gan- Where it appears that either the examiner is mistaken in taking
sell, 2 P. Wins, a deposition, or the witness in making it, it may be amended
646. ||See after publication.

1 Cox, 281.

3 Swanst. 357. 1 Bligh N. S. 225.||

Speering v. A mistake in the title of an order was allowed to be amended,

- "" p^ Ph"' t'^ough for the purpose of charging a surety, who had entered
115. S. C. ^^^^ ^ recognizance to abide the order of hearing.

1 Eq. Cas. Abr. tit. Amendment, p. 6. S. C. ||See 2 Meriv. 395. 8 Price, 606. 1 Sim. &
Stu. 94.||

White V. Where there was a mistake in the title of the interrogatories,

Taylor,2Vern. neither the depositions were permitted to be read, nor the title to
Abr tit ^ ^ ^^ amended, though most of the witnesses wer

Abr. tit
Amendment,
pi. 7. S.C.

But qu.']

were gone abroad.

ANCIENT DEMESNE.

(A) The Nature of the Tenure, and how proved.

(B) Of the Privileges annexed to Ancient Demesne.

(D) Where Ancient Demesne may be pleaded, and the

Form thereofl

4 Inst. 269.
2 Inst. 542.
F.N.B. 14.
Salk.57. pi. 2.
Black. Tr. 4to.
218.231.
(6) Lands
which are next
■or most conve-
nient to the

(A) The Nature of the Tenure, and how proved. .

^A LL those lands which were in the possession of Edward the
Confessor, and afterwards came to William the Conqueror,
and were by him, about the 20th year of his reign, set down in
a book called Doomsday, under the title De Terra JRegis, are (b)
ancient demesne lands ; these were exempt from any feudal ser-
vitude, and were let out to husbandmen to plough and cultivate
for supplying provisions and necessaries for the king's household
and family ; and for this purpose the tenants (who are called by

Bractoiii

(B) Of the Privileges annexed to Ancient Demesne, " 229

Bracton, villani privilegiati) enjoyed certain privileges, and the lord's mansion-
tenure itself had several properties distinct from those of other house, and
tenures, which it retains to this day, though the lands be in the which he
hands of a subject, and the services changed from labour to own hands,*
money. for the sup-

port of his family, and for hospitality, are called his demesnes, but have not the same properties
with ancient demesne. Spelm. 12.

This tenure, my Lord C.J. Holt says, is as ancient as any Salk. 57. pi. 2.
other, though he supposes that the privileges annexed to it com-
menced by'some act of parliament, for that it cannot be created
by grant at this day.

The lands which were in the possession o^ Edward the Con- Salk,57. pi. 2.
fessor, and were given away by him, are not at this day ancient 4 Inst. 269.
demesne ; nor are any others, except those writ down in the book Hob. I88.
of Doomsday; and therefore, whether such lands are ancient (J°vhere^the
demesne, or not, is to be (a) tried only by that book. book of

Doomsday was brought into court by a certiorari out of Chancery, directed to the treasurer and
chamberlain of the Exchequer, and by viittimus sent into the Common Pleas*, issue was taken
whether Longhope in the county of Gloucester, was ancient demesne or not ; and on pro-
ducing the book of Doomsday, it appeared that Hope was ancient demesne, but nothing said
of Longhope: and the court held, that the party failed in his proof. Lev. 106. Sid. 147.
[Proof of the name being varied cannot be admitted, without its being averred on the
record. Jbid. Bull. Ni. Pri. 248. (4th edit.) Doomsday-hook will not shew whether the
lands themselves are ancient demesne ; it will only shew whether the manor is so or not.
2 Burr. 1048.]

[* The authority referred to for this passage is Dyer, 150.b. ; but the editor has not been
able to find any thing to this effect, either in that page, or in any other part of that book.
The writ in the register does not require the production of the book itself, but only a
certificate of the fact from the treasurer and chamberlain of the Exchequer. F. N.B.I 6.
C. (9th edit.)]

But if the question is, Whether lands be parcel of a manor g^jj^ ^^ , ^^
which is ancient demesne? this shall be tried by a jury. Where an acre

of land may be ancient demesne, though the manor of which it is parcel is not so, vide Roll. Abr.
321., and for this «i(/<?F. N.B.I 4. Leon, 252. Dyer,8. 11 Co.- 10. Bro. Ancient Demesne, 15.
sLeon. 191. 3Lev,405.

(B) Of the Privileges annexed to Ancient Demesne.

"jV/TY Lord CoJce enumerates the six following privileges which 4 Inst. 269.

tenants in ancient demesne are to enjoy. (^) 1. That they ^'^f ^^i'v.^^'^V
shall not be empleaded for any of their lands, Sfc. out of the said ^^^^^ appear
manor, but are to have justice administered to them at their own first that the
doors, by by petit 'writ of droit close, directed to the bailiFs of the land is ancient

king's manors, or to the lord of the manor, if it be in the hands demesne; for
c r,- ^ Ma fine levied

of a subject. ^ of those lands

in C. B. be still in force, the lands are frank-fee till it is reversed ; and therefore may be em-
pleaded at common law. 2. The land must be holden of the manor, being ancient demesne.
3. It must not be holden by knight-service, because husbandry is the cause of the privilege. 4. It
is is said that the tenant may remove the cause out of the lord's court, if there be no suitors,
or but one suitor, for that the suitors are judges; otherwise there would be a failure of justice.
5. If the tenant accept a release of his lord of his seignory, or the seignory be otherwise ex
tinguished, by reason of the seisin of the king or otherwise. 6. Or if the lord disseise his
tenant, and make a feoffment in fee. 7. If the lord gi-ant the services of his tenant, and the
tenant attorn. 4 Inst. 269. Also if the manor and demesnes of the manor are in dispute
they nmst be empleaded at common law, and not in the lord's court j otherwise the lord,
would be judge in his own cause. Salk. 56. pi. 1,

Q « 2. Tbey

230 ANCIENT DEMESNE.

4 Inst. 269. 2. They cannot be impannelled to appear at Westminster,

That they may qj. elsewhere in any other court, upon any inquest or trial of any
havea^vritrfe
non ponendxs in ^

atsitts etjuratis against the sheriff, or any one who hath the return of writs ; and if, notwith-
standing such writ, the sheriff will return them, they may have an attachment. F. N. B. 166.

, 3. They are free and quiet from all manner of tolls in fairs and

Roll. Abr. 521. markets, for all things concerning (a) husbandry and substance.
b. P. (a) But this privilege does not extend to him who is a merchant, and gets his living by
buying and selling, but is annexed to the person in respect of the land, and to those things
which grow and are the produce of the lands. F.N. B. 228. 2 Leon. 191. Cro. Eliz. 227.
Leon. 231. 233. 2 Inst. 221. S. P. Vide 2 Lutw. 1144. and how it must be set forth in
pleading ; and that this privilege extends to tenant in ancient demesne, whether he hold in
fee, for life, years, or at will. Roll. Abr. 322. 2 Leon. 191. [Qa. as to tenant for years, or
at will ; and see 2 Burr. 1047.]

4. They ai'e to be free of taxes and tallages by parliaments,
4 Inst. 269. 1 *!, "^ u -11 A b J f

That regulariy unless they be specially named.

all general acts of parliament extend to ancient demesne lands, vide 4 Inst. 270. And 71.

4- Inst. 269. 5. That they were not to contribute to the expenses of knights

of parliament.
4 InsL 269. 6. That if they be severally (b) distrained for other services,

{b) Where the than they are obliged to by the custom of the manor, they all,
tenants m an- ^^^ ^^iq saving of charges, may join in a writ of monsti'avei'unt,
are distrained albeit they be several tenants.

to do the lord other services or customs than they or their ancestors have formerly done, they
may have a writ of monstraverunt directed to the lord, commanding him not to distrain for
other services; and if he will still distrain, &c. then, by a writ directed to the sheriff^ he may
command him not to demand or distrain for other services ; and if he still persists, then he
may raise the posse comitates, or command the neighbours to rescue and destroy the distress ;
but the usual course is, that if, after the writ to the sheriff, the lord will distrain, then an
attachment lies against him, returnable in one of the courts of record at Westminster, to
answer the contempt. Plowd. 129.

4 Inst 270 Land in ancient demesne are extendable upon a statute-mer-

Moor, 211. chant, staple, or elegit.

S. P. Lands in ancient demesne, upon an elegit, may, by the sheriff, be delivered in execution,

because the title of the land is not directly put in plea in the king's court ; adjudged. Hob.

47. Moor, 211. pi. 351. and Brownl. 234. S. C.

Vent. 244. In an indictment for not taking upon him and executing the

office of a constable, to which he was chosen by the leet, the
question was, Whether a tenant in ancient demesne was obliged
to execute that office ? and the court held he was.

4 Inst. 270 JF a fine be levied, or recovery suffered of lands in ancient
7°H 4.44*. demesne, this makes them frank-fee.

Roll. Abr. 327. .-^"^ ^^ ^^^ ^o^'^ be not a party, he may (c) have a writ of dis-
(c) But cannot Celt, and avoid the fine or recovery [d) ; for lands in ancient
bring a. scire demesne were not originally within the jurisdiction of the courts
"STa'paSTto ^^ Py^i^insta- : but the tenants thereof enjoy this among other
the fine or re- Privileges, not to be called from the business of the plough by any
covery. 3 Lev. foreign litigation.

419. T)iat a termor may have a writ of disceit, and make it ancient demesne, at least during
nu term. KoU. Abr. 327. {{d) An action on the case, in the nature of disceit, to reverse a

locovery

recovery of lands in anciertt demesne, was brought against the vouchee only, as cestuy que uscy
which was confessed by the plea. On motion to enter up judgment, the court refused it,
because all the parties to the recovery were not before them ; and the vouchee not appearing
to be cestuy que use, otherwise than by his own acknowledgment, there was danger of col-
lusion between him and the lord of the manor, to reverse a recovery of land in frank-fee, and
so turn it into ancient demesne. Rex v. Hadlow, 2 Black. R. 1170- Fide Rex v. Mead,
2 Wils. 1 7i The lord is not barred of his writ of disceit by the death of any of the parties to
a fine. Zouch v. Thompson, 1 Ld. Raym. 177.]

But if the lord be party, then the lands become frank-fee, and 2 Roll. Abr.
are within the jurisdiction of the courts of Westminster; for the ^\^' ^^^^'^'^^
privilege of ancient demesne being established for the benetit of
lord and tenant, they may destroy it at pleasure.

If a fine be levied of lands, part ancient demesne, and part Keilw.43. Roll.
frank-fee, and the lord brings a writ of disceit, the Court of B. R. ^^'"- '^'^^•
upon view of the transcript of the record, and proof that part are
ancient demesne, will reverse and avoid the fine as to that parcel ;
but they will not order the fine to be torn off the file, as in cases
where the whole fine is reversed, because it shall stand good as
to the frank-fee ; but they will order a mark to be made on the
fine, to signify that it is cancelled as to that part ; and in this case
the terre-tenant must be made party by scire-facias ; for otherwise •
the conusance of him that was party to the fine shall not bind, if
the tenements are frank-fee ; because by that means the terre-
tenant might be dispossessed without notice ; whereas if he ap-
pears upon the scire facias^ he may plead a release or confirm-
ation in bar, and to preserve his possession.

But if a fine be levied of land all ancient demesne, and the lord p^^ jjj •p^^J^^

reverse it by writ of disceit, it seems doubtful from the books, loi, 17 e. 3.

whether the fine shall stand good between the parties ; some say, si- F.N.B. 98.

that it ought not to be wholly set aside, nor the conusor restored ^"p^j n^Jl

to his land against his own solemn acknowledgment on record, ^^ ggj ^j.^'

especially since the lord, who brings the writ of disceit, seeks Eliz. 471.

nothing but to restore the land to the privileges of ancient (a) But if after

demesne (a); others, on the contrary, hold, that the writ of dis- Jhe fine levied,

ceit, and the reversal thereon, wholly avoids the fine, and re- ^^j released to

stores the conusor to the possession of the land ; and the conu- the conusee

sance, though on record, shall be no estoppel ; because it was and his heirs,

made in a court that had no iurisdiction of the matter: and of confirmed
^1 f. ^1 1 , ,. "^ . ,. ' his estate, he

tnererore the whole proceedmgs coram nonjudice. should have

retained the lands, notwithstanding the fine was destroyed; because by the release or confirm-
ation, his estate would have been made firm and rightful. 4 Inst. 470. 10 Co. 50. Fitz.
Disceit, 57. Leon. 290. If tenant in tail of lands in ancient demesne, leases for sixty years,
and after levies a fine, with proclamations, in the Common Pleas, h.id this is after reversed in
a writ of disceit, yet, quoad the lessee, this fine shall not be avoided, but shall make the lease
good against the issue in tail, by the better opinion of the books. Leon. 290. vide Lutw. 710,
711.

If in a writ of right in ancient demesne the tenant pleads in F. N. B. 19.
abatement of the writ, and by judgment it is abated, and the "* ^"*'- ^'^°'
demandant brings a writ o^ false judgment^ wherein the writ of
right is affirmed to be good, the Court of Common Pleas shall
proceed as the inferior court should have done; and although
judgment be there given to recover the land, yet the land is not
frank-fee, but continues ancient demesne, because the beginning

Q 4 and

232 ANCIENT DEMESNE,

and foundation of those proceedings was in the court of ancient

demesne.
Roll. Abr. 324. If the lord enfeoffs another of the tenancy, this makes the land

frank-fee, because the services are extinguished perpetually.
FfrfeRoll. Abr. go if the lord releases to the tenant all his right in the tenancy,
824, 3'25. and ^^ jp j^^ confirms to him to hold by certain services at the corn-
cases there '"O" ^^^t these make the land frank-fee.

cited out of the year-books, and where it becomes frank-fee, by coming into the hands of the
yog.

(D) Where Ancient Demesne may be pleaded, and the
Form thereof

TN all actions,"wherein, if the demandant recovers, the lands
Roll Abr 322 would be frank-fee, ancient demesne is a good plea,
"Where the suits may be removed to the courts above, and they to proceed as the inferior
court might have done, vide F. N. B. 19. (D). 4 Inst. 270. Moor, 451.

Vide 4 Inst. Therefore in all actions real, or where the realty may come in

270. Roll. Abr. question, ancient demesne is a good plea ; as assize^ writ of ward
o2^,o . qflandy writ of account against a bailiff of a manor, writ of ac-

count against a guardian, Sj-c.
Godb. 64. In replevin ancient demesne is a good plea, because by intend-

Bulstr. 108. ment the freehold will come in question.
Owen, 28. ^

S Co. 105. In an ejectione ^rmce, ancient demesne is a good plea ; for by

Hob.47. Bulst. common intendment the right and title of the land will come in

Oo EUz 826! question ; and if in this action it should not be a good plea, the

2 Roll. Rep. ancient privileges of those tenants would be lost, inasmuch as

181. Hob. 47. most titles at this day are tried by ejectment.

5 Co. 105. But in all actions merely personal, as debt upon a lease, tres-

RoU. Abr. 322. jffigg quare claumm, f regit, S^c. ancient demesne is no plea.

Cro. EHz. 826. In trespass contra pacem, though the realty comes in debate, yet

Roll. Abr. 322. ancient demesne is no plea ; for this is at the suit of the king, and

punishable for the good of the commonwealth.
2 Inst. 397. In an assize by tenant by statute-merchant, ancient demesne is

Hob. 48. no good plea, because the plaintiff does not demand the freehold,

but till he hath satisfaction.
Roll. Abr. 323; In a quai-e impedit ancient demesne is no plea, because if it
Hob. 48. should be granted there would be a failure of right, for there

they cannot grant a writ to the bishop.
2 Inst. 306. So in an action of waste ancient demesne is no plea, because in

4 Inst^^Vo ancient demesne they cannot, upon the distress returned, award
Roll. Abr. 323. ^ w"t to enquire of waste, according to the statute ; for the

sheriff ought by the statute to go in person, which cannot be

supplied by their officer, and so there would be a failure of right ;

but in this the land shall not be frank-fee.
F.N.B. 11. If the manor and demesnes thereof are demanded, ancient

c'i'^r:.^^/'. <^emesne is no plea, because the lord would be judge in his own

Show. 271.

Ancient

ANNUITY AND RENT-CHARGE. 233

Ancient demesne may be pleaded after imparlance, because Dyer, 210. in
the lord may reverse the judgment by writ of disceit; and it goes margin. Stile,
in bar of the action itself, viz. in that court, because it is coravi ^^^^^ ^^j^ ^^'
nonjudice. Where the de-

fendant in ejectment pleads ancient demesne, he need not make any defence by adding defendii
vim et injuriam suam. Carth. 220, Show. 3S6. Salk. 217. Vide Doct. PI. 51, 52. Roll.
Abr. 322. and tit. Pleas and Pleadings. It may be pleaded without affidavit. 2 Ld. Raym.
1418. Barnard. K. B. 7. [But see contr. 5 Wils. 51. 2 Burr. 1047. And the affidavit must
shew that the lands are holden of a manor, which manor is itself ancient demesne; that the
matter can be tried in the court of the manor, that there are suitors there, and that the plain-
tiff hath an estate of freehold. 2 Burr. 1047. 8.]

ANNUITY AND RENT-CHARGE.

AN annuity, strictly taken, is a yearly payment of a certain Co. Lit. 144. b.
"^ sum of money granted to another in fee-simple, fee-tail, pj"^j^_ j^j^^. ^^^
or life or years, charging the person of the grantor only: if pay- Doct. and
able out of lands, it is properly called a rent-charge ; but if both Stud. Dial. 2.
the person and estate be made liable (a), as they most commonly '^'^^'^' ^' ^*
are, then it is generally called an annuity. annuity in fee

granted by the crown out of the 4i/. per cent, duties payable for exports and imports at Bar-
badoes, is merely a personal inheritance. Earl of StralFord v. Buckley, 2 Ves. 170. And
so, as Lord Hardwicke said, in giving his judgment in that case, is an annuity out of the
p()st office or excise. Co. Lit. 20. a. n. 4. (14th edit.); and as such, the former has been
treated by Lord Thurlow. Lady Holdernesse v. Marquis of Carmarthen, 1 Bro. Ch. R. 277.
A rent created out of a rent is a mere annuity. Per Lord Hardwicke, 2 Ves. 178.

As an annuity may be granted in fee, it may, of course, as a conditional or qualified fee :
but it cannot be entailed, being, in point of charge, strictly personal ; Co. Lit. 20. a. : there-
fore a remainder cannot be limited over of it, as it may of a rent-charge ; Turner v. Turner,
1 Bro. Ch. R. 316. Weeks v. Peach, 2 Lutw. 1218.; except in a grant by the king, 2 Ves.
181.; but when granted to one, and the heirs of his body, if the condition is performed by the
grantee's having issue, the estate becomes absolute, and alienable without restriction ; and
this, it seems, though the grantee never come into actual possession. 1 Bro. Ch. R. 316.
Ambl. 776. S. C. It is not the subject of a fine or recovery, Sheph. Touchst. 11. Pig. 97#
1 Ves. 391.; but passes by mere grant or transfer. 1 Bro. Ch. R. 377. There can be neither
courtesy, nor dower of it. Co. Lit. 144. b. Poph. 87. Moor, 83. It is not within the
mortmain act of 7 E. 1. stat. 2. Co. Lit. 2. b., nor the provisions of the statute of frauds, so
far as they affect real property. 2 Ves. 170. It is not assets in the hands of the heir, because
not comprised within the description either of land or tenements : not of executors, because
its heritable quality prevents it from going to them. Doct. and Stud. c. 30. p. 97. 2 Ves. 179.
But an annuity of inheritance is forfeitable, as an hereditament, for treason. Nevil's case,
7 Co. 34. b. it is assignable, and in most cases, though assigns be not named in the grant.
Co. Lit. 144. b. Gerrard v. Boden, Hetl. 80. If granted by the king, it must be granted out
of some branch of his revenue, for the royal person is not chargeable. Anon. 1 Salk. 58*
(«) Whether the one or the other shall be liable, is in the election of the grantee ; which
election, when once distinctly made, is final and conclusive. Co. Lit. 144. b. Lit. (J 219r
Ambl. 782.]

(A) How an Annuity or Rent-charge differs from

other Rents.

(B) What shall be a good Grant or Creation thereof.

. (C) Of

234 ANNUITY AND RENT-CHARGE.

(C) Of the Remedies for the Recovery of an Annuity.
[(D) Of the Provisions made by the Legislature re-
specting Life Annuities.] And herein,

U 1 . /« "what Cases a Memorial is necessary,
2» Of the Form and Contents of it.
3. Of vacating and setting aside Annuities.\\

Apportionment and Extinguishment of an Annuity or Rent-
charge, vide head o£ " Rents." Vol. VII.

(A) How an Annuity or Rent-charge differs from
other Rents.

Lit. § 218. A Man seised of land grants, by deed-poll or indenture, a
vide for this yearly rent to be issuing out of the same land to another in

head of i?«j/*. ^^^^ -^^ ^^^^ ^^ ^^^ life, 4-c. with a ^^xxsq oi distress ; this is a

rent-charge ; and if the grant be without clause of distress, then

it is a rent-seek.
Vent. 161. Co. A rent-service is an annual return, made by the tenant, either
Lit. 142. in labour, money, or provisions, in retribution for the land that

passes.

Lit. $214,215. If a man makes a feoffment in fee, or a lease for life, or a

2 Inst. 505. gift in tail, remainder over in fee, upon such grants there can be

,?u' ^^^'u ^ no rent-service reserved at this day, the feoffor or grantor having
(n) For without . iirm "^ ii° o P

such clause it "^ reversion, and the teofree or grantee by the statute of quia

is only a rent- emptores terrarum holding of the capital lord ; therefore if in

seek. Whether such deeds a rent be reserved, there must be a clause of distress

!*f L'i!*^'^^ "j inserted (a) ; and this will make a good rent-charge, the land
ation be good ,. i^'^i., ,. o ^ ^ r ■ ^

in a deed-poll oeing criarged with a distress for the payment of it.

has been doubted, the words of reservation proceeding entirely from the feoffor or donor ;
but it seems now settled, that such reservation is good in a deed-poll, because whoever claims
an estate under any deed, ought, in reason and equity, to be obliged to take it under the
terms expressed in the deed. Vide Co. Lit. 145. b. 2 Roll. Abr. 449. Plow. \34. Gilb
Rents, 16, 17.

Co. Lit. if7.b. If a man grants a rent out of three acres, and grants over*
• • that if the rent be arrear, that he shall distrain for the rent in one
of the acres, this is one entire rent ; but it cannot be a rent-
charge for the whole, because the greatest part of the land out
of which it issues, is not chargeable with any distress for the
recovery of it; and denominatio sumenda a major i ; therefore it
is taken to be a rent-seek, for which, by the words of the grant,
the grantee may distrain in the third acre; for whenever the
remedy, by way of charge for the rent, is not commensurate to
the rent, the rent is called seek, and the charge is only appur-
tenant to the rent, and does not give it its denomination ; and
the reason is, because if such original grant should be lost and
worn out by time, and a man were to prescribe for it, if he were
to give it the denomination of a charge, it would grasp more
land than was originally intended to be charged ; and therefore
*■ the

(B) What shall be a good Grant or Creation thereof. 235

the law binds them down to the denomination of the rent, as seek,
and to set forth the charge as an appurtenant, that by length of
time no more should be comprehended in the charge than was
originally intended in the grant of that charge.

If a man grants a rent out of his lands to J. S. and his heirs, Co.Lit. 147. b.
and grants that he may distrain for it during his life, this is a 7 Co. 23. b.
rent-charge in J. S. because he may distrain in the land, out of If a rent be
which it issues, during his own life ; but it shall be seek in the IJfdtheirVeh?
hands of his heirs, because by the express words of the deed, the outofoneacre
remedy was to cease upon his death ; alifer if the distress had and that it
been limited only for years, for then the entire rent had been seek, shall be lawful
because the remedy being temporary is not adequate to the right, ^^^y^-^^ heirs^to
which is perpetual. distrain for it,

this is a rent-sech ; and the distress given to one is only an appurtenant to the rent ; but if he
to whom the distress was not limited dies, the survivor shall distrain, because the whole rent
is then in him. Co. Lit. 147. 7 Co. 23. b.

(B) What shall be a good Grant or Creation thereof.

TF a man obliges himself to J. S. in an annual rent of lOZ. per ^ Roll. Abr.
cipiendiim annuatim de manerio de D., and bindeth the said 424. For in
manor, and all the chattels therein, to a distress, this amounts to nnany cases,
a good grant of the rent, and J. S. may distrain for it. of granting

the law creates a rent-charge, because it is the design of the law to render all contracts bind-
ing and effectual, so far as the intention of the parties may be gathered from the deed ; and
such interpretation is made strongest against the grantor, because he is presumed to receive a
valuable consideration for what he parts with. ||That a grant oi annuity must be by deed, and
must contain words of present grant, otherwise the grantee cannot sue at law. See 14 Ves.
491. 2 Dow, & Ry, 60fi.ll

So if I bind my goods and lands to the payment of a yearly Co. Lit. 147. a.
rent to J. S., this is a good rent-charge, with power to distrain, ^ ^ p" ^
though there be no express words either of grant or distress ; or ^4 '
if I grant that if such a rent be arrear, that J. S. shall distrain
for it in the manor of Z)., this is a good rent-charge, for in all
these cases it is evidently my intention that my land be liable to
the charge.

So it is if I grant to S. S. that he and his heirs, or the heirs Co.Lit. 147. a.

of his body, shall distrain for 405. rent in my manor of Dale; ,n \,^V,1
, . . •' , , , • n ' Ml 1 ^ Roll. Abr.

this IS a good rent-charge m tee or in tail, because the power 424. 7 Co. 23.

of distraining is in one case given to the heirs general, and in the Butt's case,
other to the descendants of the body of S. S. ; and whoevef has a
power of distraining, has an estate in the rent for which the
distress is given.

But if I grant a rent of 405. out of the manor of Dale, and ^ Roll. Abr.
if the rent be behind, that the grantee shall distrain in my manor j^^' ^ °" q
of Sale, this power of distress in the manor of Sale shall not 23. * *
amount to the grant of a rent-charge out of the manor of Sale ;
for though in the former cases such construction is admitted to
support the intentions of the parties, where the grant is not ex-
plicit, yet in this case the reason of such construction fails, be-
cause here is a plain grant of the rent out of the manor of Dale,
and the distress is given in the manor of Sale, as a means for tlie
recovery of it, for which he had no remedy by the grant itself;

and

ii36 ANNUITY AND RENT-CHARGE.

und therefore the rule, quod expressum semper facit cessare tacituirif
takes place here, that where the intentions of the parties are evi-
dent, there that constructiwi shall never be admitted, which the
law only allows in dubious contracts, ut res magis valeat quam
pereat ; for if that manner of interpretation were admitted, the
grant might be made double, and the grantor twice charged,
against the design of the grant.
5 Roll. Abr. If a rent be granted to A. and if the rent be behind, that a

425. stranger shall distrain for it for the use of the grantee ; this is a

good rent-charge in A., and a distress limited to a stranger for
his benefit, is in effect making him the grantee's servant for that
purpose ; and what a man may do by one servant, he may do
by himself or any other.
2 Roll. Abr. But if the distress had been limited to a stranger, without say-

"*^^' ing for the benefit of the grantee, so that the limitation of the

distress may seem to be independent on the grant, and without
relation to it ; this distress does not make it a rent-charge, since
by no words in the deed the distress shall be applied to the use
or advantage of the grantee.
Bro.tit. Grant, If A. grants and confirms to B. a rent of 5l. to be taken out
Ah ^^ "f ^°^'' °^ ^"^ lands, which rent B. has of the grant of his father, though
B. never had any such rent from his father, yet this grant of
A.''s shall be good to create a rent-charge in B.^ for it is evidently
; the intention of A. that B. shall have a rent of 51. out of his

land; and a mistake or error in the description of the thing
referred to, shall not render the true design of the contract inef-
fectual and void.
Co. Lit. 147. b. I^^ man seised of twenty acres of land, grants a land of 205.
If two tenants percipiendwn de qualibet acrd terra suce, or out of every acre of
in common, or land ; this is in nature of a several grant out of every acre, for

ff^^'"''l*,t"t"'* the grant shall be taken most strongly aijainst the grantor, and
be, and they .J' ini ^'^i'

grant a rent of the grantee shall have 205. out or each acre.

20«. per annum out of their land, the grantee shall have 40*. rent ; for as their estate is several,
so shall their grant be too ; and therefore each shall be taken to grant a several rent of 20*.
5 Co. 7. b. Plow. 140, b. 161. 171. 289. Co. Lit. 197. a. 267. b.

Co. Lit. 147. b. If ^. bargains and sells land to B. by indenture, and before

enrolment they both join in a grant of a rent-charge to C. this

after the enrolment shall be construed the grant of B. and the

•confirmation of A.^ because when the bargain and sale is enrolled,

it has the effect of a deed enrolled, from the making thereof;

and therefore it must be the grant of ^., who had the land at the

time of the grant made ; but if the deed had never been enrolled,

then it should have been the grant of A. and confirmation of i?.,

because the land never passed from A., the deed being ineffectual

and void, without enrolment.

Bro. tit .Grant, If an original grant be made of a rent-charge to commence

ptow^ 1 56." ^* ^^"^^ ^^^ ^^^^^^ °* '^- ^- ^t is good ; for this is not like the case of

Palm. 29, 30. lands, where the livery must carry the freehold immediately, and

2 Vent. 204. where the abeyance, or want of distinguishing where the free-

^"' " ^^^^ ^*°^^ ^^' "^^^ ^^ °^ prejudice to the rights of others ; for if the

#w, or already freehold was to be granted infuturo, a man that had brought his

. . precipe

(B) What shall be a good Grant or Creation thereof 23/

prcecipe against the grantor, after he had proceeded in it a consi- created, cannot
derable time, mijrbt have his writ abated by the freehold's vesting ^^ granted to
in a stranger, by reason of a conveyance made by the grantor, after the death
before the writ brought ; but the grant of a rent de novo is not of J^ S. because-
attended with this inconvenience ; for no man can have a preee- ^^ ^^^^ '■^"ts
dent right to a thing which is originally created by the grant prg^gj^^j ^jf
itself; yet qucere, at what distance of time such charges may be ties, and there-
allowed to commence, whether it must not be after the lives of fore such
the persons in esse ; for if they be indefinite, they seem to have grants are not
the same tendency to a perpetuity as any other contingent re- f,!^ehold "^bv '^
mainders, or executory interest ; and the bare affectation of a thus being split
perpetuity is sufficient to condemn any conveyance. and severed,

doth hide the
person in whom the right is ; and therefore the party that has right, will not be able to discern
against whom to bring his prcecipe for the recovery of it. Bro. tit. Grant, 86. 8 H. 7. 3.
Plow. 156. [An annuity (after a disposition of it for other purposes), was devised to the
testator^s eldest son : and on his decease, to the heirs male of his body ; and in case of his
having no issue male, to remain to the testator's next eldest son, and the heirs male of his
body ; the four eldest sons died without issue : it was adjudged, that the claim of the fifth was
too remote. Turner v. Turner, 1 Bro. Ch. R. 516.]

[Where a man devised all his lands for the payment of his lj^ Kennoule
debts, and also an annuity out of a certain town, which the v. Earl of
trustees sold; it was decreed in equity, that the annuity should Bedford,
issue out of the other lands unsold j there being sufficient to pay \-Z'\ ^^•.^"^'
the debts. &c'.(Arp. h

iCh.Ca.295. S.a

Where an annuity was devised out of a rectory, the glebe Thorndike v.
being but of small value, and the tythes not liable to distress, it "f p ^^"'au
was decreed that the whole rectory should be liable.] tit. Annuity

&c. (A), pi. 2. 1 Ch. Ca. 79. S.'C.

II A demise by a parson of his benefice, made subsequent to Shaw v. Prit-
the 57 G. 3. c. 99. for securing an annuity, is void, it being in chard, lo Barn.,
substance a charging of a benefice within the meaning of the V ; ^"^^'J
13 E. c. 20., which, so far as relates to the charging of benefices, & c. 344.
is now in force, having been revised by the 57 G. 3. c. 99. 1|

[If a man, possessed of a term, grant a rent generally, without 1 Roll. Abr.
limiting any estate, the rent shall continue during the term. tit. Estate (H)^

A man, possessed of a term for years, determinable on lives, Gosley v.
devised 20/. per annum to J. S. to be paid half-yearly, if the Gilford,,
cestui que vies should so long live. J. S, died during the life of 7^1 ^^'if'^*,
the cestui que vies, and it was adjudged that the rent wr^ not termination
determined by his death, but should be paid to his executors in the case of

during the continuance of the term.] a devise of an

annuity to
testator's executors and their heirs during the life of B., to the separate use of a married'
woman, who died in the life of B. Rawlinson v. Montague, 2 Vern. 667. So> where a man
devised an annuity to another during the life of his executor, to be paid him by the executor
and the annuitant died in the life-time of the executor. Savery v. Dyer, Ambl. 159.

11 An annuity can only be where the principal is irrecoverably Winter v.
gone, and is to be satisfied by periodical payments ; therefore Monsley,
a bond conditioned for payment of a sum to the executors of 2 Bam. & A.

.... . I J _ 802

the obligee, and interest in the mean time to him, is not an
annuity bond.||

ANNUITY AND RENT-CHARGE.

Lit. $ 219. JF a man grants by his deed an annual rent to J. S. in fee, for
F. N. B. 152. ■*■ life or years, out of certain lands, with clause of distress, the
6 Co. 58. b. grantee may, at his election, either distrain for this rent, or have
^'*\'iTannuity * ^^'^'^ °^ annuity (<z), and thereby charge his person,
lies for a rent-service. Vide tit. Rents, and Roll. Abr.226. 1 H. 4. 4.; nor if a man devises
a rent out of his land, and dies; for after his death it is impossible to charge his person.
6 Co. 58. b. Nor will a writ of annuity lie for a rent granted for equality of partition, or
in lieu of dower ; for though these be given by the person, yet, being granted in satisfac-
tion of a real estate, they retain the nature of the things for which they are given, and
therefore not recoverable in a personal action. Poph. 87. Co. Lit. 144, 145. Roll. Abr. 227.
Co. Lit. 144. a.

If a man grants a rent out of his lands, and by a proviso in
the deed, or by deed of defeasance, provides that neither the
grant, nor any thing therein contained, shall be construed to
extend to charge his person by writ of annuity; in this case the
person of the grantor is not chargeable ; because the charge
upon the person arising only from the manner of construing
grants, which, for the consideration given, ought to be extended
as far as the words will bear against the grantor, there can be
no room for such construction, when by the express words of
the grant, the person of the grantor is not charged ; for no im-
plication shall be admitted to overthrow an express clause in
the deed.

Lit. § 220.
Poph. 87.
6 Co. 58.
But if the pro-
viso had been
that the grant,
nor any thing
therein con-
tained, should
charge the^
land, that
proviso had
been void, as
repugnant to
the grant.
Co. Lit. 146. a
Co. Lit. 14 6

6 Co. 41. b.

7 Co. 53. b.
Dyer, 227.
[Where a
man cove-

If a man grants a rent-charge out of the manor of Dale, in
which the grantor has no interest, with a proviso that the grant
shall not charge his person, this proviso is void ; because the
grantor, having nothing in the manor of Dale, could not, by any
act of his, charge it ; and consequently, the grantee having no
nanted to settle remedy for his annuity, but against the person of the grantor,
lands of such ^, -^ . ^ ^ f . ° . ., ^ i • *u u i

a value and ^"^ proviso to exempt his person is void, as rendering the whole

grant ineffectual : and if in this case the grantor had been seised
of the manor, and had granted a rent charge out of it, for the
life of the grantee, with a proviso that the grant should not
charge his person, though the grantee himself could have no
remedy but by distress; because, that remedy being open to him,
the proviso is good to exonerate the person ; yet, upon the death
of the grantee, his executor may have an action of debt against
the grantor for the arrears, because the executor has no other
annuity in the remedy for the recovery of them ; for he cannot distrain after the
hands of the grant is determined ; and therefore the proviso to exempt the
person is void against the executor, as rendering the grant useless
and ineffectual.

had none at
the time, but
purchased
land after-
wards, and
voluntarily de
vised it, such
land was
holden to be
liable to the

devisee.
Tooke V.
Hastings.
2 Vern. 97.]

6 Co. 58. b.
But if the
grantor had
given a penny,
or any other
thin<! in the

And hence it is, that if a rent be gi'anted out of lands, with a

proviso that the person of the grantor shall not be charged, that

this proviso is void; because the grantee, having no distress

given by the deed for the recovery of the rent, would be without

any manner of remedy, if the proviso took place.

name of seisin, the proviso had been good, because he might recover the rent in an assize.
6 Co. 58. b.

S39

Co. Lit. 147. b.
Cro, Jac. 390.
Roll.Rep. 330.
Cro. Eliz. 607.
622.

(a) 7 Co. 23.
25. Butt's
case.

7 Co. 23.
Cro. Eliz. 185.

If a man by his deed grants, if J. S. be not yearly paid the Co. Lit. 146.

sum of ten shillings, that then he may distrain for it in his If ■^- and B.

manor of Dale, this is a good rent-charge out of the manor; but jo'nt-tenants,

no writ of annuity lies for it, because there is no grant of the chaUe^o'ut^of

rent made by the grantor ; yet, because he hath given the their land,

grantee a power to distrain, if such a yearly sum be not paid with a proviso

him, the manor is thereby charged with the distress, and con- ^ '^ , ,,
, .11 r-*^ 1 • 1 1 T , • • grantee shall

sequently with the rent tor which the distress is given. not charge the

Eerson of A., this discharges the person of A, but leaves B. liable to the writ of annuity. Co.
it. 147. b.

If a man, seised of land in fee, and possessed of other land for
years, grants a rent-charge for life out of both, with a power to
distrain in both, if the rent be arrear, the leasehold, as well as
the land of inheritance, are subject to the distress ; because a
man may oblige his chattels to the discharge of the rent; but
the rent being a freehold, shall issue only out of the inheritance;
because the leasehold, being only a temporary and perishing in-
terest, is not a fund commensurate to the charge ; and therefore,
the rent shall issue out of the inheritance, which for its duration
is a more complete estate to support the charge, and render the
grant effectual. And hence it was adjudged (a), that though the
grantee might distrain the leasehold lands, yet he must avow for
a rent issuing out of the inheritance.

But if a man possessed of a term for years, grants a rent out
of it to another for life, though the estate be of shorter duration
than the charge ; yet because it is the only fund provided by the
grant, for the payment of the rent, it shall answer the grantee so
long as it has continuance, if the life for which the rent was
granted, lasts so long.

There is another remedy for the recovery of an annuity or
rent-charge, and that is when a power is given the grantee to
enter {b) and hold the lands till satisfied the arrears by the per-
ception of profits, the grantee, when the rent is arrear, may in
such case enter and hold the lands till satisfied by the perception
of the profits ; though in this case it was objected, that there
was no estate conveyed, out of which a use might arise to the
grantee, upon the nonpayment of the rent ; and that this grant
could pass no estate to the grantee, as a conveyance at common
law, because the grantee could have no inheritance or freehold in
the land, when the rent was in arrear for want of livery, rv. r an
estate for years, for want of a certain commencement and deter-
mination ; yet it was adjudged, that by the grant he had an in-
terest vested in him, when the rent was arrear; and though it be
an uncertain interest, which, for the uncertainty of its commence-
ment and determination, might be void by the strict rules of
law, if it were granted independent of any estate certain, yet it
is good in this case, because it is created to attend a determinate
estate; and the nonpayment of the rent fixes the certainty of its
beginning, and the satisfaction of the arrears, by the perception
ot the profits, the end and determination of such interest; and
therefore the grantee may reduce such interest, as it rises, into

his

Perception of
Profits. Sid.
223. 2fi2. 344.*
Lev. 170.
Keb.784.
Raym. 135.
158, Sand.
112^ 115.
Jemet and
Caw ley.
[(b) In such
case, if he
enters, he h
not compell-
able to quit
till he has
been paid in-
terest for the
arrears down
to the day ;
aliter, if he
neglects to
enter. Robin-
son V. Cam-
ming, 2 Atk.
2411. Where
a grantee of

240 ANNUITY AND RENT-CHARGE.

an annuity his possession by ejectment, which is the proper remedy to re-
has recovered cover the possession.

against a tenant from year to year, of the grantor, he may afterwards, in an action for use and
oecupation, recover all the rent in the hands of the tenant at the time he gave him notice, and
down to the day of the demise, but not afterwards. 1 Term R. 578. Birch v. Wright.

Cro.Jac.5io, If a man grants a rent-charge to J. S., his heirs and assigns,

511,512. and if it shall happen that the rent be behind and unpaid, that

2 Roll. R. 12. ^j^gjj j.j^g ggjj J ^^ fjjg heirs and assigns, shall enter into the land,

I B^lstr ^^^ have and enjoy the rents thereof, until the arrears be fully

250. Haver- ' satisfied ; and the grantor covenants to levy a fine to the uses of

gile and Hare, the said deed ; if after the fine levied the rent be arrear, the

And by the trrantee may enter into the land, or make a lease for years to try

better opinion, j^.^ ^.^j^ .^ ejectment; because by the fine there is an estate vested

if the rent be in the conusees, to raise an use in the grantee, of the rent-

arrear before charge, when the rent is behind; and whenever the rent becomes

the fine levied, ai-^ea,.^ i\^q possession is executed to that use, and consequently

i^Vd^after- ^^^ grantee hath a right to take and keep that possession, till the

wards shall be use for which it was executed be satisfied; and that was till the

sufficient to arrears of rent be paid by the perception of the profits ; and

raise an use m tl^erefore though the greatest interest in the land be uncertain,

ente^'^^nto^the (because it is uncertain when the rent will be paid out of the

land for the profits,) yet while his interest remains, if his possession be dis-

recovery of turbed or devested, he may restore it by ejectment, which is the

these arrears ; proper remedy to recover the possession; and if the grantee

because the ^ .^ V . .x • ^ ri • ^ i

fine is cuided assigns over the rent, the assignee may likewise enter, and main-

by the deed of tain a title in ejectment ; for though the use arises out of the
grant, and both estate of the conusee only, as the rent is in arrear, and, till the
amount but to j.gjjj. |^g behind and unpaid, there is nothingf more than a bare
one assurance. . ,. u- u • •*. i. • ^ • i i ... i

Cro Jac 512. possession ox a use, which in its nature is not assignable ; yet by

the conveyance of the rent it shall pass, because it is nothing
more than a remedy or security for the rent; and therefore shall
attend that into whose hands soever it comes.
C T > 1 fi2 "^^^ action of debt does not lie for the arrearages of an annuity,

4 Co. 49. a.* ^^ ^^^^ grantee be seised of it in fee, tail, or for life.
J|\Vebb V. Jiggs, 4 Maule & S. 113. Kelly v. Clubbe, 5 Bro. & B. 1.50.1] But where
an annuity was granted by deed for two years, and the grantee brought an action of debt
for the arrears ; on demurrer it was held, that debt would lie upon the contract, it being
granted by deed, and for years. Cro. Eliz. 268. For the remedies which heirs and exe-
cutors have by distress or action of debt, vide head ot Rents, and the statutes 32 H. 8.
C. 37.* sAnn. c. 14. 4G. 2. c.28. llG.2. c. 19.

* See a good comment on this statute of H. 8. Co. Lit. 162. a. b.

Roll. Abr. 226. As regularly the remedies for recovery of an annuity or rent-
Hob 5Y* charge are either by writ of annuity or distress, it is to be seen

Dyer, 344. which is the most eligible method, and what shall determine the
Co. Lit. 144. grantee's election. If A. grants a rent-charge to B. and his
heirs, if the rent be arrear, not only the grantee, but his heirs in
infinitum, may distrain for it ; for the remedy, being commen-
surate to the right, must be of equal duration with the right ;
but if in this case the rent be arrear, and the grantee brings a
writ of annuity, in order to charge the person of the grantor, it
is no longer to be considered as a rent issuing out of the land,
because the writ of annuity has entirely turned the charge upon

the

the person of the grantor, and under that denomination it must
determine with the life of the grantor, because his heirs are not
chargeable.

But if A. had granted for him and his heirs (a) to B. and his i Roll. Abr.
heirs, such a rent out of his lands, in this case the heirs, being 226. Co. Lit.
comprehended in the contract, are bound to make good the grant il'*'./ ?P.
so lar as they have assets by descent rrom the grantor. annuit\'

granted by a body politic will charge the successors, though not named in the grant. Plowd.
455.]

If a rent be granted in tail, the grantee cannot alien it while it Poph. 87. Co.
continues a rent; because as such it may be entailed within the Lit. i9.a.
statute de donis ; but if the grantee brings his writ of annuity, it iP^-'^' ^^'^'
is no longer within the statute, because then it is become a charge
merely personal, without any relation to the land out of which it
was first granted, and therefore is become a fee-simple conditional,
as such a gift of lands had been before the statute; and therefore
the annuity not being within the statute, may be aliened.

But in some respects the writ of annuity is the better remedy : Annuity where
as if a termor for years grants for him and his heirs a rent- better.'Poph.
charge out of his land to another and his heirs, in this case, if 87.
the grantee distrains, and thereby has thrown the charge en-
tirely off the person upon the land, upon the expiration of the
term, the rent is gone; because the grantor could not charge
the land longer than his own interest in it continued ; but if the
grantee had brought his writ of annuity, the charge upon the
person had been perpetual, so long as the heirs of the grantor
had any assets ; because the grant was for him and his heirs.

The next thing to be enquired into is, what acts of the grantee Lit. § 219.
are sufficient to determine his choice; and this determination must Roll. Abr. 22^.
be by some solemn act in a court of record, that it may appear ^o* Lit- 145.
to be the act of the grantee himself, and not of a stranger, with-
out his permission or authority; and therefore if the grantee
distrains for the rent, that is no determination of his election j
neither is the suing forth a writ of annuity any determination,
because these may be done by a stranger, without the grantee's
knowledge or consent ; or rather, because the design of the law -
being to help men to the recovery of their rights, in the best and
most beneficial method, the grantee shall not be foreclosed of
either of his remedies, by any rash or unadvised act of his; but
if the grantee counts in the writ of annuity, or avows the taking
of the distress, the count and avowry is a repeated determination,
or plain confirmation of his first choice and election ; and this,
being entered on record, is taken to be the deliberate act of his
mind, and therefore he shall not be allowed to recede from what
he has done in so solemn a manner.

But if a man grants a rent-charge in fee, without saying, for Dyer, .'544. b.
him and his heirs, and the grantor dies, and the grantee brings Hob. 58.
a writ of annuity against the heir, though he counts thereon,
and proceeds to judgment, yet that does not foreclose him of his
distress on the land out of which the rent issues ; because, by .
the death of the grantor, the grant, as an annuity, was deter-
mined ; and consequently the grantee had no election, having
Vol. I. R but

Q^2

Poph. 86.
Co. Lit. 148.
Mo.301.
2 Co. S6.

C'o. Lit. 1 48.
(a) But Qn.
Whether the
case may not
be so circuni-
Btanced as to
entitle him to
relief in
equity ? Vide
2 Vern. 143,
144. [In the
case referred
to from Vern.

ANNUITY AND RENT-CHARGE.

hut one remedy for the recovery of it, which was by distress ; but
the distress in this case still remained, because the grantee lost
his election by the act of God, for which no man ought to suffer.

So it is if tenant pur aider vie grants a rent-charge for ten
years, and the cestui que vie dies, in this case the charge is deter-
mined as a rent, because the estate for life, out of which it issued,
is ended ; but the grantor is still liable to a writ of annuity for
the growing annuity, because the grantee had not by any act of
his determined his choice; and therefore, the election being taken
away by the act of God, and not by any act of his own, he may
pursue the other remedy by writ of annuity.

But if the grantee of a rent-charge, before he has made his
election, purchases part of the land, in this case he is without any
remedy {a), either against the land or against the person of the
grantor ; the land is not liable, because the rent is extinct by the
purchase; and it being in its original creation a rent-charge,
though the law gave a double remedy for it, yet when the
grantee has by his own act discharged the land, and extinguished
the rent, he can have no remedy for the thing which he has
wilfully destroyed, and therefore he can have no writ of annuity
against the person.

the grantee was only a mortgagee of the estate charged with the annuity.]

17 G. 3.

$1.

C.26.

The memo-
rial in !>uch
case must
disclose the
consideration
truly. Rex v.
Wright, Hunt,
43. \b) A scire
facias to re-
vive a judg-
ment entered
up before the
act passed, is

[(D) Of the Provisions made by the Legislature re-
specting Life Annuities.

TJY statute 17 G. 3. c. 26. § 1. it is enacted, "that a memorial
" of every deed, bond, instrument, or other assurance,
** whereby any annuity or rent-charge shall, from and after the
" passing of this act, be granted for one or more life or lives, or
" for any term of years, or greater estate determinable on one
** or more life or lives, shall, within twenty days of the execution
" of such deed, S^c. be enrolled in the High Court of Chancery ;
*' and that every such memorial shall contain the day of the
** month and the year when the deed, S^c. bears date, and the
'* name of all the parties, and for whom any of them are trustees,
** and of all the witnesses ; and shall set forth the annual sum or
*' sums to be paid, and the name of the person or persons for
" whose life or lives the annuity is granted, and the consider-
" ation or considerations of granting the same ; otherwise every
" sjich deed, &c. s/iall be null and void to all intents and purposes.**
§ 2. " That before any judgment shall be entered of record
*' upon any warrant of attorney for recovering or securing the
" payment of any annuity or rent-charge that hath already been
" granted for one or more life or lives, or for any term of years
or greater estate determinable upon one or more life or lives,
and before any execution shall be sued out, or action (b)
brought on any such judgment already entered, or on any
deed, bond, Sfc. already executed for the puiposes aforesaid,
a like memorial of the deed, <§r. shall be enrolled in the high
Court of Chancery; and in case the party shall neglect td

" enro

(D) Statutes respecting personal Annuities, (Memorial.) 243

" enrol the same, any such judgment, execution, or proceeding an action with-
*' in the action respectively shall be null and void." in this clause.

Fenner v. Evans, 1 Term R. 267.

l|By the 53 Geo. 3. c. 141. § 1. the statute 17 Geo. 3. c. 26. 53G.3. c.i4i.
is repealed, except as to annuities granted before the passing of ^ ^'
that act, but the principal provisions of the statute are re-enacted
with some alterations and additional regulations.

By § 2. (which nearly corresponds in substance with the above § 2.

§ 1. of the 1 7 Geo. 3. c. 26.) it is enacted that within thirty days [a) {a) Twenty
after the execution of every bond, instrument, or other assurance, ^^^^ ^" '-^^
whereby an annuity or rent charge is granted for one or more life
or lives, or for any term of years or greater estate, determinable
on one or more life or lives, a memorial of the date of every such
deed, bond, instrument or assurance, of the names of the parties,
and of all the witnesses thereto, and of the person or persons for
whose life or lives such annuity or rent-charge shall be granted,
- and of the person or persons by whom the same is to be bene-
ficially received, the pecuniary consideration for granting the
same, and the annual sum or sums to be paid, shall be enrolled
in the High Court of Chancery, in the form or to the effect follow-
ing, with such alterations as the circumstances of any particular
case may require, otherwise every such deed, S^e. shall be null
and void. (The act then gives a form of memorial.)

The numerous cases decided on these corresponding sections
of the two acts may be classed under the following heads :

1. In what Cases a Memorial is necessary.

2. Of the Form and Contents of it.

3. Of Vacating and setting aside Annuities.

1. In 'what Cases a Memorial is necessary.^

[The warrant of attorney is an assurance within the act, and „ , .
i. u 11 1 T Hopkins v.

must be enrolled.] Waller

4Term R. 463. Davidson v.FoIey, 2 H. Black. 12. 3 Bro. C. R. 598. Jacques v. Witty, I Term
R. 557. Downes v. Parkhurst, cited in 2 H. Black. 13.

11 And it is not sufficient to state it merely by way of recital in -y-jj^ Braam v.
stating the annuity deed.|| Isaacs, i Bos.

& P. 451. ; sed wrfe Jackson v. Milsentown, f Taunt. 189.

[But a judgment entered is not such an assurance, unless per- Sherson v.
haps where it is the only security. ?TermR.824.

An assignment of part of an annuity is within the act, for it Dnkc of Be!- .
must always appear by the registry, who has the present subsist- *«" v- Wil-
ing right/ t--.*,?--

2 Ves. jun. 158. S. C. ; sed vide Dixon v. Birch, 2 H. Black. 5C7.

So where an annuity was granted before the act passed, and Grant v.
assigned subsequent to it, and after the assignment made, the ^°'^3'> C* P*
original securities, but not the assignment, were enrolled; it was "** ^
holden, that no proceedings could be had by reason of the non-
enrolment of the assignmeut.

R 2 A con-

S44

ANNUITY AND RENT-CHARGE.

Jackson v.
Lever, 3 Dro.
C. Ca. 605.

4 Term R. 660.
662. 5Te^mR.
283.; and see
5Bing.215.

O'Calliighan
V. Ingilby,
9 East R. 135.

Henderson v.
Countess of
Glencairn,
2 Taunt. 235.

Keats V. Hick,
5 Moo. R. 629.
4 Barn. & C.
69.S.C.

Blake v. Atter-
soll, 2 Barn.
& C. 875.
4 Dow. & Ry.
549.

Tetley v.
Tetley, 4 Bing.

214.

Brown v.
Dowthwaite,
•1 Madd. 446.

James v.
James, 2 Bro.
& B. 702.
5 Moo. 479.

(a) An equita-
ble estate is
within this
exception,
thougti it
mortgage
its whole
value. Shrap-
nel V. Vernon,
SBro.Ch.R.

A contract to grant and secure an annuity, though in part
executed, is not within the statute.

The act being made to take effect " frpm and after the passmg
" of it," its operation commenced from the first day of the session,
and affected annuities granted subsequent to that time, though
before it actually passed. The twenty days are exclusive of the
day on which the deeds are executed.]

II A trust deed granting estates to trustees upon trust' to raise
money by annuities, which annuities are accordingly granted, does
not require enrolment, it not being an instrument " whereby any
annuity is grantedJ'

So also where an annuity bond was assigned by the obligee,
the annuitant, to secure an annuity granted by the obligee of
less amount, it was held that the second annuitant was not
obliged to enrol the bond.

Where a mother, at the instance of her sons, sold her business
and advanced them a sum of money out of the proceeds, and
subsequent to such advance it was agreed that the sons should
secure to her an annuity, and a bond was accordingly given for
securing it, it was held, that as the bond was subsequent to the
advance of money, the annuity was voluntary, and not within
the act.

The act applies only to annuities sold for pecuniary consider-
ation; and, therefore, where by marriage settlement 10,000/.
was to be paid by the father of the wife to trustees upon trust to
pay the interest to the husband for life, and the father died with- .
out having paid the principal to trustees, and his affairs being
embarrassed, and it being uncertain whether there would be -^
sufficient to pay his debts, the husband agreed to accept in lieu
of the 10,000/., 5000/. and an annuity for his life of 125/., it was
held, that such annuity granted by the executors of the father,
did not require enrolment.

So where an annuity of 1 0/. was granted by a son to his parents,
in consideration of their giving up to him a farm which they occu-
pied, and the stock on it worth 300/. ; it was held that the an-
nuity need not be enrolled under 53 Geo. 3. c. Ul.

So an annuity granted in consideration of an assignment of a
reversionary interest in stock does not require enrolment. i

And where an annuity is granted in consideration of the fair'
and bonajide sale of landed property, the consideration is not a
pecuniary consideration or monei/s worth within the meaning of
the statute, and enrolment is not necessary. ||

[The last section of 1 7 G. 3. c. 26. excepts from the act any
annuity or rent-charge given by will or marriage-settlement; any
annuity secured upon lands of equal or greater annual value,
whereof the grantor was seised (a) in fee-simple or fee-tail in
possession at the time of the grant, or secured by the actual
transfer of stock in any of the public funds, the dividends whereof
are of equal or greater annual value than the annuity ; any
voluntary annuity {h) granted without regard to pecuniary con-
sideration ;

(D) Statutes respecting personal Annuities. (Enrolment.) 245

sideration ; any annuity or rent-charge granted by any body 268. (i) An
corporate, or under any authority or trust created by act of par- annuity^ con-
liament; and any annuity where the sum to be paid does not the grantee's
exceed ten pounds, unless there be more than one such annuity giving up his
from the same grantor or grantors, to or in trust for the same business to the
person or persons.! grantor, is

^ i^ -^ withni this

clause; for any annuity granted for any other than a /^eflMMtarj^ consideration is, for the
purposes of the act, to be taken to be a voluntary annuity. Crespigny v. Wittenoom,
4 Term R. 790.; ||and see Doe dem. Johnston v. Phillips, 1 Taunt. 556. So also an annuity
granted in consideration of the grantee's resigning his situation as master of an academy.
Hutton V. Lewis, 5 Term R. 639. ; and see James v. jfames, 2 Bro. & B. 702. Blake v. Attersoll,
2 Barn. & C. 875. ; and ante, p. 244. The two last cases were decided on the 53 G. .5.
c. 141., in which the words " money's worth" are added to the words "pecuniary con-
sideration" in the former statute. An annuity secured on lands of equal annual value
need not be enrolled, although also secured upon leasehold property. Ex parte Mitchell,
2 East R. 137.JI

II The corresponding clause in 53 G.3. cl^l., enacts that this 53G.3. c.i4i.
act shall not extend to Scotland or Ireland, nor to any annuity or ^ ^°*
rent-charge given by will or by marriage settlement, or for the
advancement of a child; nor to any annuity or rent-charge secured
upon freehold, or copyhold, or customary lands in Great Britain
or Ireland, or in any of his majesty's possessions beyond the seas,
of equal or greater annual value than the said annuity, over and
above any other annuity, and the interest of any principal sum
charged or secured thereon, of which the grantee had notice of
the time of the grant, whereof the grantor is seised in fee-simple
or fee-tail in possession, or the fee-simple whereof in possession
the grantor is enabled to charge at the time of the grant, or
secured by the actual transfer of stock in any of the public
funds, the dividends whereof are of equal or greater annual value
than the said annuity ; nor to any voluntary annuity or rent-
charge granted without consideration or money's worth ; nor to
any annuity or rent-charge granted by any body corporate, or
under any authority or trust created by act of parliament.

By section 5. it is enacted, that in case any person or persons If^id. §5.
by whom any annuity or rent-charge, of which such particulars
as aforesaid are hereby required to be enrolled, shall, for the -
time being, be payable, shall be desirous of obtaining a copy of
every or any deed, bond, or instrument, or other assurance,
whereby such annuity or rent-charge was granted, and of such
his, her, or their desire, shall give twenty-one days' notice in
writing to the person or persons, for the time being, entitled to
such annuity or rent-charge, such person or persons shall, on or
before the expiration of such twenty-one days, unless prevented
by fire, or other inevitable accident ; and in that case, if the assur-
ance shall not be destroyed by such accident, then, as soon after
as such impediment shall be removed, send or deliver to the
person or persons requiring the same, a copy of every deed,
bond, instrument, or other assurance, whereby such annuity 6t
rent-charge was granted, or of such of the assurances as in such
notice shall be required; and such last-mentioned person or
persons shall, at the time of receiving the same, pay to the
person or pei'sons furnishing the same, a sum after the rate of

R 3 sixpence

246 ANNUITY AND RENT-CHARGE.

sixpence for every one hundred words contained in every such
copy, and also the reasonable costs of sending or delivering the
same ; and the person or persons holding the original instru-
ments by which such annuity or rent-charge shall be secured,
shall suffer the person or persons to whom such copies shall be
delivered or sent to examine the same with the originals ; and in
case such copies shall not be sent or delivered, or the person or
persons holding the original instruments, shall refuse to suffer
such copies to be examined therewith, according to the direction
in this act, it shall be lawful for the person or persons by whom
the annuity or rent-charge is payable, to take out a summons
from any of his majesty's justices of his courts of King's Bench
and Common Pleas, requiring the person or persons neglecting
to send or deliver such copies, or refusing to suffer the same to
be examined with the original instruments as aforesaid, to appear
before such judge, and shew cause in the premises ; and it shall
and may be lawful for the judge before whom such person or
persons shall be summoned to make such order for the produc-
tion of the instruments by which such annuity or rent-charge
shall be secured, and for suffering the complainant to take
copies thereof, and examine the same or the copies delivered
with the original instruments, and otherwise in the premises as
to such judge shall seem meet.

2. Of the Form and Contents of the Memorial.\\

Downes v. [The omission or incorrect statement of the date of warrant of

Parkhurst, attorney is fatal.

2 H. Black. 13. Duke of Bolton v. Williams, 4 Bro. Ch. 2 10.

DukeofBoI- -^ defect in the memorial as to the date of any one of the

ton V. Wil- securities vitiates the whole transaction. (a)

liams 4 Bro. Ch. 210. 2 Ves. jun. 158. S. C; but see Ex parte Chester, 4 Term R. 694.

Saunders v. Hardinge, 5 Term R. 9. ||(a) But now by 3 G. 4. c. 92. it is provided, that every

bond, &c. granting any annuity which shall be duly enrolled shall be valid, notwithstanding a

memorial of any other deed securing the same annuity shall not have been enrolled.||

Exch'^ ^ T*^^'^* ^^ ^^ "°* j.necessary to describe the trustees eo nomine, it is

32 G. 3. An- ^"°"g^* if it appear on the face of the memorial that they are

derson v. Col- SUch.

lard, Sitt. Westminster, cor. Ld. Keni/on after Easter T. 1791.

Duke of Bol- '^^^ names of all persons, agents as well as principals, by whom

ton V. Wil- and to whom the consideration is paid must be set forth,

hams, ubi suprh. Toldervy v. Allen, 5 Term R.

Hood V. Bur- Every trust relating to the annuity must be registered,
ton, 4 Bro. Chan. Ca. 121.

Allan'^'sT^ But it seems not necessary to take notice of those which are

R. 480. ^'™ ^^^ created in consequence of the annuity.]

IIAhhoughthe words of the act, 17 Geo. 3. c 26. only require
the names of the parties to be specified, and for whom any of
them are trustees, yet the decisions have required the trusts of the
deed to be expressed, though this doctrine has been repeatedly
disapproved.

Thus

(D) Statutes respecting personal Annuities. (Enrolment.) ^7

Thus a statement of the trust as general for the grantee, when Taylor v. John-
in fact there was a prior trust for the grantor until default in ^°"'
payment of the annuity, was held insufficient.

So also, where the trustee was described in the memorial as Askew v.
" nominated on the part of the grantee," and it appeared from Mackretli,
the deed that he was a trustee both for the grantor and grantee, i ^ew 1 . 21 .
the memorial was held insufficient.

So also, where the deed contained a stipulation that the trustee Desenfans v.
should permit the grantor to take the rents and profits until de- O'Brien, 3 East
fault, and in case the annuity should be in arrear sixty days, he ' " *
might enter and raise sufficient to satisfy it, and suffer the grantor
to take the overplus, a memorial stating the deed to contain the
usual powers of entry and distress, and perception of the rents, Sfc.
for securing the annuity, was held insufficient.

So also, it is insufficient to refer generally to the trusts of the ^^ ^g^g^ v
deed as the " trusts thereby declared." Lockwood,

1 Maule & S. 527.; and see Bradford v. Burland, 14 East, 445.; but see Defaria v. Slurt,

2 Taunt- 225. Blamire v. Barfoot, 6 Taunt. 504. Browne v. Rose, 6 Taunt. 124.

It is not necessary that the estates charged should be specifi- O'Callaghan v.
cally set forth in the memorial where the annuity is charged on Inglel)y,9East,
all the grantor's estate in a county, and so stated ; nor is it
necessary to state specifically the powers in a deed, except so
far as they create a trust, and so are brought within the words
of the statute as to trustees.

If a bond be joint and several, the memorial is insufficient if wiHey v. Caw-
it state it to be several. thorne, i East.

598; and see Coare v. Giblett, 5 East, 461.

If an annuity bond bind the grantor's heirs, the memorial is Horwood v.
not insufficient for describing it generally, without mentioning ^*q pj^s^'^i'^^
the obligation on the heirs. 4 Taunt. 546*.

S.C.J and see .Jackson v. Milsentown' 6 Taunt. 189.

If the annuity-deed under the 17 G. 3. c. 26. contain a proviso Ex parte An-
for a repurchase by the grantor, the terms of it must be stated ; ^'^ i l^os. &
and it is not sufficient to refer to the proviso, stating the annuity ^J^ Rooth
to be redeemable on such terms as therein expressed. Druce,4Taunt.

252. Tringham v. Bethune, 7 Taunt. 429. Doe dem. Mason v. Phillips, 5 Maule & S. 569.

But under the 53 G. 3. c. 141. a proviso for redemption need Yems v.
not be mentioned in the memorial. S"! onr

Cv A. 206.

Where the grantor was required to make her will, as a ExparieM^c-
further security for the annuity, and the grantee retained the keiiicie,
will, it was held that the memorial was insufficient for not no-
ticing the will.

It is not decided whether a fine is an assurance requiring 14 East, 453.
enrolment by 17 G. 3. c. 26.

The assurances required by the annuity acts to be enrolled Sandilandn v.

are those entered into bv the irrantor, or persons at his instance, Marsh, 2 Barn.
,. . ,1 • 1 1 r i • I & A. 67;).; and

ior securnig the annuity ; and therefore a guarantee given by a ^^^ ^ Youn. &

third party, unconnected with the grantor, and for a commission j. 156. Sed
payable to such third party, is not within the act. w/*^ Kosher

V. Hurdis, 5 Term R. 678.
R 4 A lease

2^8 ANNUITY AND RENT-CHARGE.

JSx parte A lease deposited two years after the annuity is granted, as a

132.*^'' ' collateral security, does hot require enrolment. |I

Hood V. Bur- [Where several annuities are payable out of a gross sum

ton, 4 Bro. assigned for that purpose, every annuity must be stated in the

Chan. Ca. 121. " . , . . * ^ «> ' "^ i -i -^ •* r

meniorjal ; it is not sufficient to describe it as one annuity or

such gross sum.
^"^^ %ri°^' '^'^'^ memorial must contain an account of all the proceedings
Hams 4 Bro i*elative to the consideration, to whom and on whose behalf paid ;
Ch. R, 297. a»d the actual mode and manner of paying it.]
2 Ves.jnn.l38.

Dalmer v. H ^^ ^^^ consideration is paid &/ an agent, his name, as well

Barnard, as that of the principal, must be stated in the deed.

7 Term R. 248. Askew v. Mackreth, 1 New R. 214.

Crawford v gyj- jf p^jj ^^ ^jj agent of the grantor, his name need not

Fhillips, 2 New 1 , . , °i /« 1 ^ I • 1 •

R. 141. "^ stated, since the words ot the statute do not require tnis.

Coare y. Gib- The time of payment is not required to be specifically stated
lett, 4 East, 85. by the act, and is not any further material than as entering into

the question of the value of the consideration.
Crawford v. And where the consideration was alleged in the deed to be

R 'i4^^'.^ j^ P^'d by the grantee on a particular day, on which day it was in
see Cook v. ^^^^ P^'^ ^^ ^he common agent of both parties, and by him paid
Jones, 15 East, a few days after to the grantor, this was held a sufficient allega-
2^®' tion of payment within the statute. 1|

Wright V. [If paid part in notes, a description of it as money is bad, and

R554 ^^""^ ^^^ ^^^^^ ^"^^ other particulars of the notes must be stated. ]
iJBerry V. Bentley, 6 Terra R. 690.; see Drake v. Rogers, 4 Moo. R. 402.|| ,

Ex parte ||But if the value of the notes has been received in money be- ;

sEast 137 ^°^^ ^^^^ execution of the deeds, it may be stated as money. || «!

(«) Kirk man v. [If part of the Consideration be money previously lent (a), or .;
Bhrk TOO P^^*" ^^ ^^ retained in satisfaction of a debt (i), or to satisfy "i
(b) Shove V. the accruing payments of the annuity (c), or part of it be the .:
Webb, 1 Terra giving up a former annuity (c?), or if the whole be a judgment . ,
vv^" {''^^^^ recovered against the grantor (e), a memorial stating the payment ''J
E. 22"g^3 generally is bad, for it does not disclose the transaction truly.

JB. R. Hunt on Annuities, (rf) Washburn v. Birch, 5 Term R. 472. {e) Jaques v. Withy
1 Term R. 557.

Simons v. But where the consideration has been paid from time to time,

5 Term r! 139. ^"^ ^^^^ hten renewed for the purpose of keeping the contract
Sowerbyv. open, the gross amount may be stated as the consideration. The
Harris, 4 Term consideration may be set forth merely by way of recital.
R. 494.

Hodges V. Mo- And it is sufficient to mention it only once, though there are
ney, erra . several deeds for securing the annuity, in each of which it is ex-
pressed.]
Ranger v. Earl HSo also, if the name of the party for whose life the annuity is
5 Minr&S''2 • S'"''^"'*^^ ^^ expressed in one of the several securities, it is suffi-
and 'see BaVber ^'^"^ without expressing it in the others. ||
v. Gaftison, 4 Bam. & A. 282.

[But

(D) Statutes respecting personal Annuities, (Enrolment.) 249

[But where one of the instruments which constitute the assur- Saunders v.
ance does not set forth the consideration, (and it is not necessary Hanlinge,
to set it forth in every one,) tlie memorial must connect the in- ^ ™ ^*
strument omitting it with the others, by so plain an inference
that it may clearly appear to relate to the same transaction,
else such instruments will be void ; and it must be inferred from
the memorial itself that all the deeds are connected.]

Where a memorial described an instrument as an assignment, Butler v. Ca-
, and it appeared in fact to be an under-lease, it was held suffi- pel, 2 Bam. &
ciently described in popular language. C. 251.

An annuity deed is properly described as a " grant of annuity, ^^ Browne v. Lee
though it contain an assignment of stock as a security ; so also 6 Bam. & C.

thoujjh it contain a release of a former annuity. 689. Crowther

° •'v. Wentworth,

6 Bam. & C. 566.
It is not necessary that the annuity deed should be executed Buckridge v.
by all the parties to it before the memorial is enrolled, pursuant ^^'ght, 6 Barn,
to 53 G. 3. c. 141. §2. &C. 49.

By the 53 G. 3. c. 141. the memorial must contain the descrip- Darwin v. Lin-
tion and places of residence of the witnesses to the annuity deed ; ^^'"' ^ ^^^n. &
and therefore where the subscribing witness to a warrant of c" -1 ' n •

^^ ^ ■ c • -i '^Ulltn V. Pnt-

attorney, given as a collateral security tor an annuity, was de- chard, 5 Bam.
scribed as C. R. clerk to W. A. of Great M. Street, in the county & A. 717. Sed
of ikf., it was held insufficient, as C. R. did not reside in Great *^'^7Moo.582.
M. Street. l ^'"f ^7-

5 Lr. 4. c. 92.

So where the memorial described one of the witnesses by the p,
initial only of his Christian name, it was held insufficient. f^^^^ J „

& C. 1. ; and see Metcalf v. Bowes, 5 Barn. & C. 258.

If the witnesses to the deed are accurately described in the Flight v. Buck-
memorial, it is sufficient, though they did not see tlie parties ^"'Ige, ,~ Bing.
execute ^ 8 J- F 215.; and see

execute. g y^^. ^ p^jj

155. G Taunt. 124.

Now by the S G. 4. c. 92. it is enacted and declared, that 3 G. 4. c. 92.
no further or other description of the subscribing witness or
witnesses to any deed, bond, instrument, or other assurance,
whereby any annuity or rent-charge is granted, is required in
the memorial, besides the names of such witness or witnesses.

By 5S G. 3. c. 141. § 4. it is enacted, that in every deed, bond, "♦js G.5. c.i4i.
instrument, or other assurance, whereby any annuity or rent- § 4.
charge shall, from and after the passing of this act, be granted
or attempted to be granted, for one or more life or lives, or for
any term of years, or greater estate, determinable on one or more
life or lives, where the person or persons to whom such annuity
shall be granted or secured to be paid shall not be entitled
thereto beneficially, the name or names of the person or persons
who is or are intended to take the annuity beneficially shall be
described in such or the like manner as is herein-before required
in the enrolment; otherwise every such deed, instrument, or
other assurance, shall be null and void.

113. Of

250

ANNUITY AND RENT-CHARGE.

II 3. Of vacating and setting aside Annuities.

[By the 1 7 G. 3. c. 26. § 3. it is enacted, " that in every deed,
" instrument, or other assurance, whereby any annuity or rent-
" charge shall, from and after the passing of this act, granted,
** or attempted to be granted ; the consideration really and bona
^^ Jide, (which shall be in money only («), and also the name or
" names of the person or persons by whom and on whose

grantor for the « behalf the said consideration or any part thereof shall be
redemption oi - •' - .

a former an-
nuity, was
holilen not to
affect the le-
gality of the
consideration.

17 G. 3. c. 26.
§ 3. (a) The
payment of
part of the mo-
ney to a third
person at the
request of the

" advanced, shall be fully and truly set forth and described in
" words at length ; and in case the same shall not be fully and
" truly set forth and described, every such deed, S^-c. shall be
" nidi and void to all intents and purposes."]

Ex parte Fallon, 5 Term R. 285. A debt for goods antecedently bona fide
sold, seems to be a good part-consideration. Shove v. Webb, 1 Term R. 732. Q,u. Whether
a judgment recovered, Jaques v. Withy, 1 Term R. 557. or an assignment of a former
annuity, be a good consideration? Ex pai'te Fallon, 5 Term R. 285. Duke of Bolton v.
Williams, 4 Brp. Ch. R. 297. It is not necessary to state the consideration in more than one
of the instruments which constitute the assurance. Hodges v. Money, 4 Tenii R. 500.

Williams v. ||The court set aside the securities for an annuity, on the ground

Hockin, jj^^|. jj^g consideration-money did not belong to W.^ as stated in

the securities, but to C, and that the name of the person on whose
behalf the money was paid was not truly set forth in the re-
ceipt, C. claiming the consideration money and the annuity as
his own. II

[§ 4. enacts, "That if any part of the consideration shall be re-
turned to the person advancing the same, or in case the consider-
ation or any part of it is paid in notes, if any of the notes with
the privity and consent of the person advancing the same, shall
not be paid when due, or shall be cancelled aiid destroyed with-
out being first paid, or if the consideration or any part of it is
paid in goods, or if any part of the consideration is retained
on pretence of answering the future payments of the annuity,
or any other pretence ; in all and every of the aforesaid cases
it shall and may be lawful for the person {b) by whom the an-
nuity or rent-charge is made payable, to apply to the court in
which any action [c) is brought for payment of the annuity on
judgment entered, by motion, to stay proceedings on the judg-
ment or action ; and if it shall appear to the court that such
practices as aforesaid, or any of them, have been used, it
shall and may be lawful for the court to order the deed,
bond, S^c. to be cancelled, and the judgment, if any has been
^ye that court « entered, to be vacated."]
this summary -■

jurisdiction. Haynes v. Hare, 1 H. Black. 659. Ex parte Chester, 4 Term R. 694.
Girdlestone v. ||This section is held not imperative on the court, as the
& a'ei. ^™ words (unlike those in the three preceding sections) are,
" it may be lawful for the court to order the deeds to be
" cancelled," 8^c.\ it is discretionary in the court, either to vacate
the securities in case of a violation of the section, or to do so
on particular terms, or to refuse to do so according to the circum-
stances of the case ; and so also as to the sixth section of the

b2, G. 3.

(6) But this re-
lates only to
the particular
provisions of
this section.
On a defect in
the memorial,
any person may
apply to the
court. Saun-
ders V. Har-
dinge, 5 Terra
R.9. ((;)The
entering up
judgment, or
even giving a
warrant of at-
torney to enter
up judgment in
any court, is
sufficient to

2 Dow. & R.
150. ; and see
1 Taunt. 572.

(D) Statutes respecting persortal Annuities. (Setting aside.) 251

53 G. 3. c. 141. which is a transcript of the above clause.
The words of the sections import on the face of them to refer to
cases where improper practices exist, and they givp the court a
discretionary power to examine whether unfair advantage has
or has not been taken of the grantor.

Therefore, where part of the consideration-money had been Barber v. Gam-
deposited in the hands of the grantee's attorney till certain som, 4 Bam.
houses, out of which the annuity was granted, should be com- ^ ^* ^si.
pleted, but it appeared that the money deposited had all been
paid over to the grantee in a short time after the date of the
deeds, and there was no fraud in the transaction, the court re-
fused to set aside the annuity; since this was not a fraudulent
retainer contemplated by the act.

So where A., an attorney, purchased an annuity of B., and Hurd v. Gir-
having paid the consideration-money, received from B. the o'^tone,
amount of a bill for business done, including by mistake a charge j Marsh 407 •
for searches for incumbrances, which search had never been and see 5 Term
made, it was held that the payment of this charge, so inadvertently *li. 597.
made, was not a return of the consideration-money within the
meaning of the fourth section of 17 G. 3. c. 26.

And where the attorney of the grantor, at the time of payment Mootbam v.
of the purchase-money, takes and keeps an unreasonable part How, 7 Taunt,
of it for the expenses of the deed, this is not a ground on
which the court will set aside the annuity ; the attorney having
no connection with the grantee.

But where the agent of the grantee retained a considerable Mence v. Ham-
sum for expenses of preparing the deeds, and a further sum by ™ond, 6 Moo.
way of advance to answer the first year's payment of the annuity,
the Court of Common Pleas set aside the deeds against a surety
for the annuity, on the ground that this was an illegal retainer.
And they did the like in another case, although the grantee *^""3"?,-
alleged he had given no authority for, and was ignorant of, the 1 Yi\i\s,. 2,34.
retainer. 8 Moo. 109.;

and see 1 Bing. 287. 8 Moo. 302. 2 Bing. .570.

So also, where 910/., the consideration-money, was paid to Henry v. Taj-
the grantor, who immediately returned it, except 1/., to pay off lor, 5 Bing.
preceding annuities, and 160/., which the attorney who negoti- VV ^"'^ ^^®
ated the bargain retained for his trouble, the court set aside the Ga,.%er
annuity. s Barn. & C.

165. Jones v Silberschildt, 4 Bing. 26-

Where the grantor of an annuity, had on a mistaken claim of Jackson v. Ld.
the grantee paid a half-yearly instalment for half a year sooner ^*I'!^s'"gton,
than the deed required, it was held not to avoid the annuity.

17 G. 3. c. 6Q. § 5. enacts, that a particular roll shall be ] 7 g. 3. c. 66^
kept by the clerk of the enrolments in Chancery, and that every § 5.
memorial shall be enrolled in order of time, as it shall be brought
in ; and the day, hour, and time of bringing the memorials into
the office are to be specified on the roll. It also appoints the
fees of the clerks.

§ 6. enacts that all contracts for the purchase of annuities § 6.

from infants shall be void, and incapable of confirmation after
the infants shall come of age : and makes the procuring or soli-

252

ANNUITY AND RENT-CHARGE.

§'i.

§3.
§4.

§5.
§6.
$7.

$8.
$9.

Crossleyv.Ark-
wright, 2 Term
R. 603. ; and
see 5 Terra R.
9.

Shove V.
Webb, 1 Term
R, 732.

Waters v.
Mansell,
3 Taunt. 56.

Scurfield v.
Gowland,
6 East, 241.

Hicks V. Hicks,

3 East, 16.

4 Esp. 196.;

citing an infant to grant any life-annuity, or to promise, or other-
wise engage to ratify it when he comes of age, an indictable
■ misdemeanor, punishable with fine and imprisonment : as does
§ 7. the asking, demanding, or taking by any solicitor or other
person of more than 10^. per cent, for procuring money to be
advanced on any life-annuity.

By the act 53 G.3. c. 14-1. we have seen that the statute
1 7 G. 3. c. 26. is repealed, except as to annuities granted previous
to the passing of the act ; but the principal provisions of the
former act are in substance re-enacted by the latter, with some
additional regulations.

By § 2. the time for enrolment is enlarged to thirty days, and
a form of memorial is given.

By § 3. it is provided, that if any such annuity shall be grant-
ed to or for the benefit of any company exceeding ten persons,
for the purpose of granting or purchasing annuities, it shall be
sufficient to describe them by their usual firm or name of trade.

§ 4. enacts, that where the person to whom the annuity is
granted shall not be entitled thereto beneficially, the name of
the person intended to take it beneficially shall be described in
the enrolment, otherwise the deed or instrument shall be null and
void.

(For § 5. see ante, p. 245.)

§ 6. is to the same effect as § 4. of the former act. [ante, p. 250.)

§ 7. is to the same effect as §5. of the former act. [ante, p. 251.)

§ 8. is to the same effect as § 6. of the former act. {ibid.)

\ 9. is to the effect of § 7. of the former act.

[Where the securities are made absolutely void by the
statute, a stranger may take advantage of any irregularity ; and
therefore where a^eiijacias issued against a person in possession
of goods under a deed given i?iter alia in consideration of an
annuity, it was holden that the sheriff, having notice that the
annuity was not registered, was justified in returning nulla bond.

And where the contract is avoided merely for irregularity,
the consideration-money may be recovered back from the
grantor ; whether such consideration be wholly in money, or
for a debt antecedently due for goods sold. But qu. as to
goods sold at the time of granting the annuity ?]

II If the grantor has communicated to the grantee that there are
defects in the memorial, and has treated for a compromise on
the ground of the annuity being void, the grantee may maintain
an action for money had and received, although the grantee
neither demands payment of the arrears, nor tenders new secu-
rities, nor delivers up the old ones before he sues.

And where the grantor sets asides the securities, the grantee
may recover back the consideration-money, as money had and,
received, although a bond was given for securing the annuity,
which is not set aside ; he is not obliged to sue on the bond.

When the grantee of an annuity set aside for a defective
registry brings an action for money had and received to recover
back the consideration, the grantor may set off the payments in

respect

(D) Statutes respecting personal Annuities. (Setting aside.) 25S

respect of such annuity, though for more than six years, unless and see

the plaintiff reply the statute of limitations. ^ ' Taunt. 520.

Where the grantee has regularly received the anpuity during Davis v. Bryan
his life, his executor cannot sue for the consideration-money, on g Bam. & iC.
the ground that no memorial was enrolled ; as the contract was ^^^*
not thereby void, but only voidable. ||

[An action for money had and received for this purpose Stratton v.
cannot be maintained against a surety who has in fact never re- Rastall, 2Term
ceived any part of the consideration, though he join with the y: ^P^' ^V"
principal in signing a receipt for it.] . GtoZhcontrh

Ashurst J.

II Where upon the grant of an annuity the agent who negotiated Carroll v.
it, as between the grantor and grantee, was appointed trustee Goold, 1 Bing.
and receiver of the rents of the estate of the grantor on which it ^^^* ^ Moo.
was charged, and afterwards advanced money to the grantee j gj^^ 274,
out of his own funds, in anticipation of such rents, and debited 3I6.
the grantee with the usual commission charged by him on an-
nuity payments; it was held, that on the eventual failure of the
securities and insolvency of the grantor, the agent could not treat
such an advance as a mere loan, but that it must be taken as a
payment made to the grantee in liquidation of the arrears of the
annuity, and that the latter could only issue execution for the
arrears actually due after deducting the sum advanced and
received by him from such agent.

A party outlawed in K. B. in an action to recover the arrears Loukes v. Hol-
of an annuity, cannot be heard in C. P. to move to set aside the beach, 4 Bing.
annuity. II *^^-

[As to the extent of the summary jurisdiction of the common
law courts in questions on this act, see 2 Ves. jun. 154. 4 Bro.
Chan. R.S10.]

APPEAL.

A N appeal is the party's private action, seeking revenge for Pt is derived
■^ the injury done him, and at the same time prosecuting for ^°^j^^«
the crown, in respect of the offence against the public. peller," the

verb active, which signifies to call upon, summon, or challenge one ; and not the verb neuter^
which signifies the same as the ordinary sense of " appeal" in English. 4 Black. Cora. 312.]

Though this be a legal suit, and therefore to be carried on in
a reasonable way, yet as none of the statutes of amendment or
jeofail extend to it, the utmost exactness is required in the pro-
ceedings, especially where the life of a man is brought into dan-
ger ; but as the nice distinctions made and allowed of in the
several kinds of appeals, are accurately treated of by Mr. Ser-
jeant

254,

APPEAL.

2 Hawk. P. C.

232.

59 G. 3. C.46.
This whole-
some statute
was passed in
consequence
of the case of
Ashforcl V.
Thornton,
1 Barn. & Aid.
405., where
this proceed-
ing was re-
sorted to. See
the proceed-
ings stated at
length in the
report.

jeant Havokins, it may be sufficient to set down here what seems
to have been most materially said by him relating to appeals
under the following heads :

II By the 59 G. 3. c.46. reciting that appeals of murder, trea-
son, felony, and other offences, and the mode of proceeding
thereon, have been found to be oppressive, and the trial by battle
is a mode of trial unfit to be used ; it is enacted, that after the
passing of the act, all appeals of treason, murder, felony, or other
offences, shall cease, determine, and become void ; and that it
shall not be lawful for any person or persons, at any time after
the passing of the act to commence, take, or sue any appeal of
treason, murder, felony, ^r., but that all such appeals shall be
utterly abolished ; and it is further enacted, that after the passing
the act, in any writ of right then depending or thereafter to be
instituted, the tenant shall not be received to wage battle, nor
issue be joined or trial had by battle, in any writ of right. ||

(A) Of the different Kinds of Appeals: And herein.

1. Of an Appeal of Death.

2. Of Appeals of Larceny.

3. Of an Appeal of Rape.

4. Of an Appeal of Mayhem.

(B) In what Courts an Appeal may be brought.

(D) Within what Time an Appeal must be brought.

(E) In what County an Appeal must be tried.

(F) How the Appellant is to appeal and prosecute.

(G) The Form of the Writ, and for what Faults it

may be abated.

(H) The Form of the Declaration.

(I) What may be pleaded in Bar to an Appeal.

(K) How the Appellant is to be punished for a false
Appeal.

(A) Of the different Kinds of Appeals.

s Inst 132. T^HERE were anciently several kinds of appeals which seem
Bract. 118. obsolete at tUs day, as appeals of treason, which might be

259 ^''*^'^' ^"^^ before the Jparliament and other courts of law, as well

as before the constable and marshal, and were determinable by

battle.
2 Inst 132. But appeals before the parliament are taken away by 1 H. 4.

c. 14.

{A.) Of the different Kinds of Appeals. 255

c. 14!. and those before other law courts are become obso- (a) But as to
lete. (a) thejurisdiction

^ ' ot the consta-

ble and marshal, in relation to treasons committed out of the realm, it seems to continue still
in force ; for in the seventh year of Charles the First, an appeal of treason supposed to be com-
mitted beyond sea, was actually commenced before the constable and marshal, who, for want
of sufficient proof to clear the truth, awarded that a duel should be fought between the parties,
for the final determination of the matter. Rushworth's Collect, part 2. vol. i. fol. 112., between
Donald Lord Rea and David Ramsay, Esq.

Appeals de pace, de plagis, and de imprisonamenta, are out of ^ I"st. i82.
use, and have been turned to actions of trespass for many hundred /iycJVjf ^*
of years past ; also the whole learning of appeals of arson {h) seems 288. a.'
obsolete at this day.

The kinds of appeals therefore that seem to require any con-
sideration at this day, are those of death, larceny, and rape,,
which are capital appeals, and that of mayhem, which is con- ..
sidered as a trespass ; and therefore,

1. Of an Appeal of Death.

An appeal of death, which is now chiefly in use, is a vindictive
action which the law gives a wife against her husband's murderer,
and to the heir at law against one who kills his ancestor, which
being the suit of the subject the king cannot pardon ; but as the
several matters set forth in the following part of this head more
particularly relate to this kind of appeal, it seems needless to
insert them here.

2. Of Appeals of Larceny.

An appeal of larceny in an action which a person' robbed of H.P. C. 184.
goods may bring against the felon, in which there shall be a Latch. 127.
restitution of the goods {c\ and the offender to suffer such punish- (^) Where
ment as if he were convicted at the suit of the king. ^^^ ^^^"j'Jf

order to entitle the party to a restitution, vide 2 Hawk. P. C. 248.

In every appeal of larceny it is necessary to set forth whose 2 Hawk. P. C.
the goods were that were stolen, and what the price of them ^^^- ^^) ^"^
was (rf), and that the words felonice cepit be made use of. - g^g rpj^'j^ J^^'^

not seem necessary for any other purpose than to shew that the crime amounts to grand
larceny, and to ascertain the goods, in order thereby the better to entitle the appellant to a
restitution.

They who are robbed of goods in which they have a special 2 Hawk. P. C.
property, as churchwardens, carriers, S^c. may maintain an appeal ^^®- W Keilw.
of larceny, and may either bring it generally for their own • P • •
goods (e), or specially for the goods of J. S. SfC. in their custody.

3. Of an Appeal of Rape.

By the common law, any virgin, wife, or widow, might bring 2 Inst. I80.
an appeal of rape against any one who had ravished her, though Co. Lit. 125.
she were his nief ; but a lawful wife could never bring such appeal
without her husband ; and by the common law the ravisher was
to suffer death.

But

250

APPEAL.

2 Hawk. P. C.
253.

Hob. 134.
2 Jones, 205.

Vide 2 Hawk.
•p. C. 236.

But by the statute of PVcsitn. 1. c. 13. the offence of com-
mitting a rape was reduced to a trespass, and punishable in the
same manner with other trespasses, till the making of the statute
of Westm. 2. c. 34. by which it is enacted, that 'whoever ravishes
any wo^waw, lahei-e she did not consent before or after^ shall have

judgment of life and mejnber; and though she do consent after, he
shall have judgment if attainted at the Imig's suit; but it is ob-
servable, that this statute does not restore the old common law in
relation to such appeals, as it would have done if it had only
repealed the said statute of Westm. 1. but makes a new law con-
cerning them; whence it follows, that all appeals of rape,
which are impliedly given by this statute, must conclude contra

formam statuti.

4. Of an Appeal of Mayhem.

An appeal of mayhem lies for any hurt done to a man's person,
whereby he is rendered less able in fighting to annoy others or
defend himself.

In this action the words felonice mayhemavit are necessary,
though the defendant is not subject to the loss of member.

2 Hawk. P. C.

232.

Cro. Eliz. 605.
(a) But not
against one
who is main-

(B) In what Courts an Appeal may be brought.

A PPEALS are commenced either by writ, which is an origi-
nal out of Chancery, returnable in the King's Bench only,
or by bill.

Appeals by bill may be sued in the King's Bench against
any person in actual custody, or by having bail filed for him
there, {a)

prised de die in diem. Cro. Eliz. 694. 2 Hawk. P. C. 232. ; and note. That if the appellee be
arraigned and tried the same term, there is no necessity to file a bill against him. Jones, 425.
Cro. Car. 552, Roll. Abr. 536. But vide Skin. 634. pi. 3., where, notwithstanding the court
ordered a roll to be made, and a copy of it to be delivered to the appellee, and gave him a day
to plead.

2 Hawk. P. C. If a man be brought into court either by a void writ of appeals
634 riJ"cro ^^ ^y ^ voidable one, which is afterwards abated, he may be
Eliz. 605. 695! arraigned by bill in custodia mareschalli.

Vide 2 Hawk. A bill of appeal lies before justices of eyre, and before justices
P.C. 233. and specially assigned, and before justices of gaol delivery, and for
there cited for ^^^ same reason, as some say, before justices of assize ; who by.
appeals before ^^^ purport of several statutes are authorized to deliver gaols
the sheriff' and without any special commission against any prisoner in the gaol,
coroner, and which they are to deliver, or as it is generally holden, against a
Eone ot" P^^«°" ^hom they have bailed.

of the realm, before the constable and marshal, vide 2 Hawk. P. C. 157. ; and that they cannot
be sued before justices of the peace. Idem.

2 Hawk. P. C. If some of the accomplices only be in prison, a bill of appeal
lies against all, which, after the trial of those in the prison, shall
be removed into the King's Bench, where the rest shall be pro-
ceeded against.

333.

AN infant may bring an appeal (a), but he must prosecute it Moor, 46i.

by guardian, and shall be nonsuited upon such guardian's j,' vfS' i^^'
non-appearance at a day whereon he is demandable; but if the sLd. Rayra.*
infant comes into court, and says, that he will relinquish the suit, 1288. Holt,
and the guardian insists to continue it, the court may discharge ^^^' (») Also
him and assign another. ^" a.\i\>ea\. lies
° against an in-
fant. H.P. C. 185. 2 Hawk. 247.

But an idiot, or person born deaf and dumb, or one attainted H.P.C. I8.5.
of treason or felony, or outlawed in a personal action, so long as ^ Hawk. P. C.
such attainder or outlawry continues in force, cannot bring any
appeal wliatsoever.

The wife only (unless she had a share in the guilt, in which Vide tit. Baron

case it shall be brought by the heir) can bring an appeal of the ««^ Feme.

death of her husband (b), but she must have been his lawful ?,:^u ^^'

• o I • I • 1 • 1 1 1 1 • 1 » •/• (0) Inatanap-

wiie ; which is to be tried by the bishop s certificate. peal may be

brought against a feme covert, vide 2 Hawk. P. C. 247.

Also a woman divorced from her husband, though by a void- g \\^^\ P q
able sentence (5), cannot maintain an appeal. 242. (c) For

this at least is implied in the old rule, that a woman shall have an appeal de viorte mariti inter
brachia SIM interfecti, et non alithr. 2 Hawk. P. C. 242. Firfe 2 Inst. 68.

But a wife who elopes from her husband, and the wife of one 2 Hawk. P. C.
attainted of high treason, may have an appeal of his death ; 245.
though such a wife cannot have dower, for the statutes^ which
take away dower in those cases, say nothing as to her right of
bringing an appeal.

If the wife take another husband either before or pending the 2 Hawk. P.C.
appeal, she puts an end to it for ever: and if she marry after 243. (rf) But
• J * /-^x u ^ ..• whether the

judgment {d) she cannot pray execution. ^^^^^ ^^^, ^^^

award execution against him either ex officio, or at least at the demand of the king, qu. 2 Hawk.
P. C. 243.

For the death of an ancestor who leaves no wife the heir only Vide head of
can bring an appeal, and such heir must himself be innocent (^) 7^f*^o*^'f -p u
of the fact, he must be heir general [g) according to the course Y^ive a share in
of the common law, and also heir male [h), and in his count must the guilt, the
set forth how he is heir to the deceased. next heir shall

have an appeal
against him. H.P.C. 182. 2 Hawk. P. C. 243. (g) Therefore the father cannot bring an
appeal for the death of his son, nor the youngest son in Borough- English for the death of his
father ; and if the deceased have two sons at the time of his decease, the eldest attainted of
treason, neither of them can bring the appeal. Co. Lit. 8. Leon. 326. Dyer, 50. (A) This
depends upon Magna Charta, which ordains that none shall be imprisoned on the appeal of a
woman for the death of any but her husband ; and therefore if she brings such appeal, the
court ex officio will abate the writ ; but no other appeals by women are excepted, besides the
appeal for the death of an ancestor. 2 Hawk. P. C. 243, 244.

If an heir die, pending an appeal commenced by him, it seems Vide 2 Hawk,
agreed that no other heir can proceed in such appeal, or com- | .^p^"*^*
mence a new one ; and it seems the stronger opinion, that if the ^^^ ^JI"**
right of bringing an appeal be once vested in an heir, who dies
without bringing anv, the right of appeal is gone for ever ; and

Vol. I. ' S if

258

APPEAL.

if an heir die after judgment given against the appellant, it is
questionable whether his heir can sue execution.

(D) Within what Time an Appeal must be brought.

T>Y the statute of Gloucester, cap. 9. (which has been construed
to extended only to appeals of death,) an appeal shall not be
abated Jbr default of fresh suit, f the party sue within the year and
day after the deed done, the computation whereof, as the law is
now settled, shall be made not from the day when the wound was
given, but from the day when the party died ; also the year and
day shall be computed from the beginning of the day, and not
from the precise time when the death happened, because regularly
no fraction shall be made of a day.

An appeal of rape may be brought in any reasonable time, the
judgment whereof lies in the (a) discretion of the court ; for, as
has been said, the above statute of GUmcester, cap. 9. extends
only to appeals of death.

(E) In what County an Appeal must be tried.

A LL appeals are local actions, and regularly to be tried in the
■^ county wherein the offence was committed.

But it is said, that if a person had died in one county of a
wound given in another, the appeal might be brought in either of
them, and the trial be at the bar by a jury returned from the
body of each of those counties ; but since the 2 & 3 E. 6. cap. 2.
which enacts. That the party may sue an appeal in the county
where the person fdoniously stricken, &c. shall die, &c. it seems
the trial can be from such county only.

So an appeal of larceny is a local action ; yet if one rob me of
goods in the county of A. and carry them into the county of B.,
air^Ti^B t'f "^^^ ^^^ either bring an appeal of robbery in the county o{ A.,
one take me ®'' ^" appeal of larceny in the county of i?.

from the county of J. into that of 5., and there rob me, he shall be appealed of robbery in the
county of B. only, for he was only a trespasser in A. 2 Hawk. P. C. 247. So in rape, if a man
takes a woman by force in one county, and carries her into another, and there ravishes her, the
appeal shall be brought in the latter only. 2 Hawk. P. C. 256.

(F) How the Appellant is to appeal and prosecute.

2 Inst. 513. A T common law neither plaintiff nor defendant, in any appeal
2 5 ^T { A whatever, could make an attorney [c], except in some special

where a de- cases; but now by the 3 H. 7- cap. 1. it is enacted, that the
fendant prayed appellant in any appeals of murder {d), or death of a man, where
his clergy after battle by the course of the common law lies not, may make an at-
ridTh"'T'°"' ^^^^^^y'> "-^^ appear in the same, in the said appeals, after they be'
tiff replied commenced, to the end of the suit and execution of the same. I

bigamy; in which case he was allowed to make his attorney, in order to procure the bishop'»j
certificatt. 2 Hawk. P. C. 257. Also.after a defendant is acquitted, he may appear by attorney

2 Inst. 320.

3 Inst. 53.

4 Co. 42. b.

2 Hawk. P. C.
241. sSalk.
38. Ld. Raym.
21, 22.
1 1 Mod. 70.
pi. 9.

2Hawk.P.C.2.
(a) So of ap-
peal of larceny,
2 Hawk. P. C.
247.

Dyer, 38.
2 Hawk. P. C.

242.

Dyer, 39.
7 "Co. 2.

(G) Form of the Wril, and for what Faults it may be abated, 259

in order to recover damages from the abettors. 8 E. 4. 3. pi. 5. {d) Cannot appear by attorney
in an appeal of mayhem. Carth.395.

But it seems that the appellant cannot make an attorney till Skin. 48. pi. l.
he has once appeared in proper person ; and that if the plaintiff ^^\^ ^'
or defendant appear or plead by attorney where they ought not, Salk.ei.
and the court receive the plea, and adjourn the cause, it seems
that' the appeal is discontinued, because such appearance was
merely void in law.

The appellant may be nonsuited for not appearing when de- Noy, 88.
manded, at any day of continuance, except a verdict hath been ^f^ ,' ^ ';!*
given against him; in which case by the 2 H. 4. cap. 7. he can- ^ro. Eliz.465.
not be nonsuited.

Where an appeal is commenced in the court below, and re- Roll. Abr. i3i.
moved into the King's Bench, the appellee is to be arraigned de ^ Bulstr. 19.
novo on the same bill of appeal, and it is not necessary to ex-
hibit a new bill against him in custodia mareschalli: and if the Skin. 670.
appellant will not appear to prosecute his appeal, the appellee P'* ^•.
may sue out a scire facias reciting the whole matter, warning him ^^^ ' *
to appear at a certain day ; and if he make default on that day,
the court on demand will nonsuit him ; but the appellant may
appear gratis, and prosecute without any scire facias.

(G) The Form of the Writ, and for what Faults it may

be abated.

nPHE writ in an appeal is an original issuing out of Chancery, Abr. Eq.4i6.

returnable into the King's Bench only; before the return
thereof the Court of Chancery only can supersede or set it aside,
where it appears to have issued erronice or improvidii by some
error extrinsic to the writ itself; but for any error or defect on
the face of it, it may be quashed after it is returned into the King's
Bench.

The court (a) ex officio will quash the writ for faults appearing ^ 7^' r* ^'
on the face of the writ; as where the sense is defective for want the apDella^it
of a material word, or where it wants those words of art which is first to de-
the law has appropriated for the description of the offence. mand oyer of

the writ, and
this he must do in open court. 2 Hawk. P. C, 267. Bigby v. Kennedies, 5 Burr. 2645.
2BIack.E.7lO.S.C.

So, if in a writ of appeal brought by husband and wife, the 2 Hawk. P. C.
conclusion is in the name of the wife only ; or if the writ omits
either the name of baptism, or surname of the appellant or ap-
pellee being under the degree of nobility, it shall be abated.

Also the court will abate the writ when the declaration varies Vide Hawk,

from the writ in some material point, either as to the reign of P« C- 268.,

the king, or as to the county wherein the fact is laid, ^r. su hTauU^ i

the declaration are not fatal, if the writ on the file be right, 8 Co. 162., and title Amendment
and Jeofail.

On the exception of the party the court will abate the writ; Salk.63. pi. 4.
as if he shews that there are not fifteen days between the teste and See Ld.Raym.

S 2 return

«60

APPEAL.

671. 1 Mod. return of the writ; but this he must do before he has pleaded in

416. 448. 451. chief, without taking advantage of it.

Vent 7. If ^^6 writ or declaration mistake either the name of baptism,

For this vide or surname or addition of the appellant or appellee, the appellee

tit. Munomer before imparlance may plead it in abatement.

and Addition ;

and 2 Hawk. P.C. 184. to 193.

2 Hawk. P. C.
275.

2 Hawk. P. C.
276. (a) Vide
Carth. 56.
That he must
plead the ge-
neral issue at
the same time
that he pleads
in abatement.

But the omission or insufficiency of an addition is salved by
the appellee's coming in and pleading, without taking any ad-
vantage of such defect, but not by his bare appearance.

The defendant may at the same time plead as many pleas in
abatement as he pleases, together with matter in bar, and the
general issue, if he can do it without repugnancy ; and if he be (a)
suffered to plead any such plea without pleading with it the
general issue, the finding it against him doth not conclude him
rrom pleading the general issue afterwards.

(H) The Form of the Declaration.

2 Hawk. P. C. T^HE declaration must set forth the oflFence with the utmost

258. Kirfehead certainty, and likewise describe it by such words of art as

of Indictments, ^q \^^ j^^g appropriated to the purpose ; therefore if the words

Jelonice in any appeal, murdravit in an appeal of murder, rapiiit

in an appeal of rape, cepit in an appeal of larceny, mayhemiavit

in an appeal" of mayhem, be omitted, they cannot be supplied by

any circumlocution.

TJie declaration must set forth in what part of the body the
wound was given ; and therefore if it only says, that the wound
was given circa pectus, it is vicious ; but it is certain enough by
shewing that the wound was given in the left part of the belly, or
of the side, or in the left leg, S^c.

2 Hawk. P.C.

9.59. Must

shew the

length and

breadth of

the wound, if

practicable.

2 Hawk. P. C 260.

{b) The year is
sufliciently
expressed by
shewing the
year of the

" By the statute of Gloucester, cap. 9. If an appeal declare
" the deed, the year (6), the day (c), the hour (r/), the time of
" the king, and the town [e) where the deed was done, and with
" what weapon {g), it shall stand in effect."
king without adding that of the Lord, or saying that it was in such a year of the reign of the
king. 3 Inst. 318. 2 Hawk. P. C. 264. (c) Must not only shew the day of the hurt, but also
the day of the death ; and if done in the night-time, proper to allege nocte ejusdem did; but a
mistake of the day is not material on evidence. 2 Hawk. P. C, 264, (rf) Circa hormn primam
sufficient. 2 Hawk. P. C 262. Carth. 3.5.3. S. P. But a mistake of the hour on evidence is not
material, (e) If a place be generally alleged, the law will intend it a vill, unless it be men-
tioned with some addition which shews the contrary. 2 Hawk. P.C. 265. Skin. 554. Carth.
53.3. But upon evidence the place is not n)aterial, so as the fact be proved any where within
the county. 2 Hawk. P. C. 265. (g) If it were by other means, as by poisoning, drowning,
suffocating, burninn;, or the like, the circumstances must be specially set forth ; but if the count
be for killing with one weapon, and the evidence of killing with another, the variance is not
material, if the means made use of may any way come under the notion of a weapon. 2 Hawk.
P.C. 261. 3 Mod. 158. J J J I-

(I) What

(K) How Appellant to be punished fir a filse Appeal, 261

(I) What may be pleaded in Bar to an Appeal.

TF the appellant wants any of those requisites required by law 2 Hawk. P. C.

in a person who brings an appeal, it will be a good plea; as 279.
that a woman was never lawfully married, that A* B. is heir at
law, and not the appellant, Sfc.

Auterfuits convict of manslaughter is a good plea to an appeal ^ ,u 17
of murder for the same killing. Where the ap-

pellee pleaded that he was before indicted of murder, and convicted of manslaughter, and
prayed his clergy, which the court would not allow him. Firfe 3 Mod. 101. Garth. 16. 19.
Salk.61. Skin. 670. pi. 9.

A retraxit of one appeal is a good bar of another for the same Salk. 64. pi. 5.
thing, and so also is a nonsuit; and according to some opinions, cj_ g g i ^
so is a discontinuance after appearance, but not before. 14]' Cro.Jac'

28.3. Yely. 204. [The case referred to in Bulst. Cro. Jac. andYelv. is that of Bradley v.
Banks, and there the whole court were clearly of opinion, that a discontinuance before ap-
pearance was peremptory.]

A release of all manner of actions, or of all actions criminal, 2 Hawk. P.O.
or of all actions concerning pleas of the crown, or of all appeals, ^^^*
or of all demands, is a good bar of any appeal ; but a release of
all personal actions does not bar an appeal of felony, being an
action of an higher nature.

If the appellee pleads a special plea, which does not amount to 2 Hawk. P. C.
a confession of the fact, it seems he must at the same time plead 284. Garth,
over to the felony, except in special cases ; as where such plea
would be prejudicial to him, or where such plea declines the
jurisdiction of the Court.

(K) How the Appellant is to be punished for a false

Appeal.

"DY the common law a defendant may recover damages for the Co.Lit. 285.t

false and malicious appeal against the appellant and his
abettors, by a writ of conspiracy or action on the case.

And by JVestm. 2. cap. 12. it is enacted as followeth, " For as (a) The appeal
*' much as many through (a) malice, intending to grieve others, mustappearto
" do procure false appeals to be made of(6) homicides and other u^^^„u!'^" i-
" felonies, by appellors having nothing to satisfy the king for ciously; ther6-
*' their false appeal, nor to the parties appealed for their fore if in an
" damages ; it is ordained, that when any being appealed of appeal of
" felony surmised upon him, doth acquit(c) himself in the king's ^"fnd' tb
" court in due manner, either at the suit of the appellor or of found guilty of
" our lord the king, the justices before whom the appeal shall be manslaughter
" heard, shall punish the appellor by a year's imprisonment; and o"" homicide
" the appellor shall nevertheless restore to the parties ap- ne-fhS'fhet''
" pealed their damages (r/), according to the discretion of the pdlor nor his'
" justices (f), having respect to the imprisonment or arrestment, abettors can
" that the party appealed hath sustained by reason of such ap- be punished.
" peals, and to the infamy that they have incurred by the impri- ^oT^axT'S'.

sonment or otherwise ; and shall nevertheless make a grievous construction

S3 «' fine

2C2 APPROVER.

- , , ** fine unto the king; and(^') if peradventure such appellor be

homicides and " "^^ ^^^^ ^o recompense the damages, it shall be enquired by
other felonies^ " whose abetment by malice the appeal was commenced, if the
it has been «< party appealed desire it; and if it be found by the same inquest,
held, that they << ^i^^j. ^^ j^j^j^ j^ ^^^ abettor through malice, he shall be dis-
offences made " trained by a judicial writ, at the suit of the party appealed, to
felony by sub- " come before the justices; and if he be lawfully convict of such
sequent sta- « malicious abetment, he shall be punished by imprisonment
lutes. 2 Inst. « ^jjj restitution of damages, as before is said of the appel-
384. (c) But „ J „ fc ' ii

neither an ^"' •

acquittal by an abatement of the appeal by a bare nonsuit on a plea, which shews that he is
not entitled to the appeal, nor a judgment on a demurrer, nor an acquittal on an insufficient
original, nor any other discharge of the appellee which does not finally bar all other prosecu-
tions against him, either at the suit of the party or of the king, for the same felony, entitle him
to his damages. 2 Hawk. P. C. 287. {d) If there are several appellees damages shall be assessed
according to the different circumstances of their several cases. Dyer, 120. pi, 10. 2 Inst. 386.
(e) Therefore if the jury give too small damages, the justices may increase them, and in like
manner abridge them when they appear to be exorbitant. 2 Hawk. P.C. 288. (g) The abet-
tors are only liable in case the appellors be insufficient ; but if tiie appellor be found sufficient
to render only part of the damages, the judgment against the abettors shall be for the whole,
2Hawk. 290, 291.

2 Hawk, P.C. Also at common law, an appellant shall be fined for an ill-
grounded appeal, at the discretion of the justices, in cases not
provided against by this statute; as upon a nonsuit after appear-
ance, or where the appeal abates by the folly of the appellant, or
where a feme covert sues an appeal known by her to be ground-
less ; as for the death of a husband whom she knows to be alive.

S92.

-i.4>^

r\'i)^%/^^ ^h^:- ■ ''-^^ S^^t Z^

i^^ ^r\^^V APPROVER.

H. H.P.C. A^ approver, or in Latins prohator, is one who being in-
J92. 3 Inst. dieted of treason or felony, for which he is in prison, con-

129. S. P.C. fesses the indictment; and being sworn to reveal all the treasons
P C. 225 226 ^"*^ felonies he knows, enters before a coroner his appeal against
227.229.' ' ^^ his partners in the crime within the realm.
^Ii^t. 125. AH persons may be approvers, except peers of the realm, per-

192 (a)Whe- ^^"^ attainted of treason or felony, or outlawed (a), infants,
ther disabled women, persons non compos, or in holy orders,
by being outlawed in a personal action, vide 2 Hawk. P. C, 205. And whether infants and
women may not be approvers, as they may bring an appeal at this day, though they cannot
wage battle, vide 2 Hawk. 205. Rex v. Margaret Caroline Rudd, Cowp. 331. And that a man
above the age of seventy, or maimed, may be an approver, though he cannot wane battle.
H. H.P.C. 192. r« . to 3

S P^C \^« ^^^ <^ovin is not bound of right to admit any person what-

2 Hawk. P.C. ^^^^^^ to be an approver, nor will any person be admitted, unless
294. (6) That* ^^ be actually indicted of treason or felony, and confess the
if he hath once indictment; (i) neither shallaperson indicted of felony continue to
pleaded not be an approver after an appeal exhibited against "^him for the
I ,i same

APPROVER. Q63

same felony; neither shall the appellee of an approver be him- guilty, he can-
self an approver : for it would falsify the appeal of the first ap- "°*^ ^^ ^" ^P"

• • .1 . 1 1 J -.1 r u- i. prover, but

prover, in supposing that he had omitted some or nis partners ; gj^^^n ^jg

and also it would cause an infinite delay ; for the appellee of hanged, be-
such an approver might as well become an approver of others, cause it is
and so on. found false

and his conies-
sion contradicts his former plea. 3 Inst. 129. H. H. P. C. 193. S. P. C. 144. But vide Finch,
587. cont., and 2 Hawk. P. C. 295. Qu.

A man can only approve others of the very same crime with 2 Inst. 629.
that for which he is indicted; and therefore no man can approve ^^^i 2 Hawk
another with having been an accessory to himself, because it is an p q^ 295.
ofi^ence of which it is not possible that he himself can be guilty ;
but inasmuch as an approver is sworn to reveal all the treasons
and felonies he knows, if he accuse persons of crimes diiFerent
from his own, such accusation seems a reasonable ground to carry
on a prosecution against them for such crimes, though it be not
of itself sufficient to put them on their trials.

If it appear either by the confession of the approver, or by the 2 mwk. P. C.

return of the sheriff, or the testimony of persons of credit, that 296. and the

•/ r ^ ^ authorities

there are no such persons as some of those appealed in rerum x!aexQ cited.
natura^ or in the realm, or in the county whereof they are named
in the appeal, he shall be hanged, unless the court in mercy
spare him.

The justices of the Kin^s Bench, and justices of gaol-delivery, ^inst. 13''.
and justices in eyre, may admit a man to be an approver, H.P. C. 194„
because such justices may assign a coroner to take the appeal ; But whethep^
but justices of the peace cannot admit a man to be an approver, ^^ ^ "'o"
because they cannot assign a coroner. justices of

oyer and terminer can do it without a special clause in their commission, authorizing them to
assign a coroner, qu. ; et vide 2 Hawk. P. C. 296. 2 H. H. P. C. 229. is express, that a man
cannot become an approver before justices of oyer and terminer, because they cannot assign
a coroner.

As soon as a person has confessed the indictment, with an s Inst. 129. ,
intent to become an approver, he puts it in the discretion of the ^•^' ^" ^'*^'
justices, either to give judgment and award execution against jHawk p!c
him, or to respite them till he hath convicted his partners; if the 297. (a) See
justices think fit to admit him to be an approver, they will assign Anei. Dial, of
a coroner to receive his appeal, and will take his oath to discover f^^'l^'^ j'^V,
all the treasons and felonies he knows, and will assign him a Whether he "'
certain number of days, to make his appeal in, during which he shall have the
shall be at liberty, and shall have from the king a penny a- penny till he
day {a); also he must make his appeal before the coroner on each ^^^ made
day during the time limited, and must at last repeat it verbatim pe"]^ by^con-
in court ; and if the coroner record his failure of making his victing the
appeal on any of the days, or the least variation in his repeating appellees,
it in court, he shall have judgment of death. ^ H&yik. P. C.

The coroner may award process against the appellee, to the " u 1^ p p
sheriff of his own county, till he come to the exigent, from aw . . .
awarding whereof he seems to be restrained by Magna Charta^
cap. 1 7. The King^s Bench and justices in eyre, and justices of
gaol-delivery, may award process into any county to apprehend

S ♦ and

264

APPROVER.

2 Hawk. P.C.
297.

H. P.C. 201.
3 Inst. 130.
S. P.C. 149.

and try the appellee ; but it seems questionable, whether Justtceg
of gaol-delivery can award process of outlawry into a foreign
county, as the King's Bench and justices of oyer clearly may.

It is at the election of the appellee, either to put himself on
his country, or wage battle with the approver ; and if several
persons be appealed by one approver, every one of them has his
election, either to put himself on his country, or to wage battle
with the approver, who must fight them all, or at least till one of
them hath vanquished him ; after which he cannot maintain his
appeal against the rest; but if a person appealed of the same
felony by several approvers vanquish one of them, he shall be
discharged against all the rest.

If the king pardon either the approver or appellee, pending
the appeal, the approvement ceases, and the appellee shall be
discharged ; in the first case because by the pardon the felony is
extinct, and the approver is no longer liable to be condemned ;
in the second, because the approvement is, in truth, the suit of
the king ; and therefore as much in his power to pardon as an
indictment.

Neither ihe approver's confessing his appeal to be false, nor
the conviction of the appellee, exclude him from the benefit of
clergy.

If an approver convict all the appellees, whether by battle or
verdict, the king, ex debito justitia, is to pardon him as to his life,
and also give him his wages from the time of the appeal to the
time of the conviction; but anciently he was not suffered to
continue in the kingdom. It is recited by 5 H. 4. cap. 2. " That
" divers notorious felons, for safeguard of their lives, had become
" provers, to the intent, in the mean time, by brocage and great
" gifts, to pursue and have their pardons; and then, after their
" deliverance, had become more notorious felons than they were
" before ; and thereupon it is enacted, that if any person pray
" or pursue, or cause to be prayed or pursued, for any such
" felon so attainted by his own confession, to have any charter
" of pardon, the name of him who pursues such charter be put
" in the same charter, making mention that the same charter
" is granted at his instance ; and if he to whom such charter is
" granted become a felon again, the party who pursued the
" chai-ter shall forfeit 100/."
pardon is assured to offenders, on discovering and convicting their accomplices. Burn. 43.
See the statute of 4 & 5 W. & M. c. 8. 6 & 7 W.3. c. 17. 10& 11 W.5. c.25. 5Ann.
c. 31. 29 G. 2. c. 30. There seems, however, some objection to the form in which the par-
don to the accomplice is promised, viz. upon the criminal's being apprehended and convicted,
the testimony of such an accomplice would be less liable to exception if the pardon was
granted upon his giving evidence generally, let the event of the trial be what it may. Ob-
servat. on Stat. 14i.(2d edit.) [It hath also been usual for the justices of the peace by
whom any persons charged with felony are committed to gaol, to admit some one of their
accomplices to become a witness (or, as it is generally termed, king's evidence) against his
fellows; upon an implied confidence, which the judges of gaol-delivery have usually counte-
nanced and adopted, that if such accomplice makes a full and complete discovery of that and
of all other felonies to which he is examined by the magistrate, and afterwards gives his evi-
dence without prevarication or fraud, he shall not himself be prosecuted for that or any other
previous offence of the same degree. 4 Black. Cora. 331. If the discovery upon the whole
be fair and ample, he ought not to be prosecuted again, because he has merely by accident
— .- .. omitted

2 Hawk. P.C.
298.

Jbid. 299.
See Anci.
Dial, of Ex-
cheq. 426.
As it is in the
discretion of
the court,
whether they
will suffer one
to be an ap-
prover, this
method of late
has been
seldom prac-
tised ; and in
many cases we
have what
seems to
amount to the
same, by sta-
tute ; where

ARBITRAMENT AND AWARD. 265

omitted any one offence. Cowp. 339. But if prosecuted, he cannot plead this in bar, or avail
himself of it upon his trial; but he may move the court to put off the trial, that he may have
time to apply for a pardon. Ibid.] ||The judges will not, in general, admit an accomplice as
king's evidence, if it appear that he is charged with any other felony than that on the trial of
which he is to be a witness. Carr. C. L. 67. If an accomplice, after being received as a wit-
ness for the crown, breaks the condition on which he was admitted, and refuses to give full
and fair information, he will be sent to trial to answer for his share of guilt in the transaction.
2 Russ. on Cri. 598.(1

ARBITRAMENT AND AWARD.

A N award is the determination of matters in controversy, by
submission to persons indifferently chosen by the persons
contending.

Under this head we shall consider,

(A) The Matter in Controversy.

(B) The Submission ; and therein of the different

Kinds, and the Revocation thereof, and of the
Stat. 9 & 10 W. 3. touching Awards.

(D) The Arbitrators or Umpire.

(E) The Award itself, or final Determination of the

Arbitrators or Umpire.

1. It must be made according to the Submission.

2. It ought to be certain.

3. It ought to be equal, and mutually satisfactory.

4. It viust be of a Thing la'wful and possible.

5. It must bejinal.

(F) The Construction and Effect of the Award ; and

herein of the Performance thereof.

(G) Of the Pleadings in Awards.

[(H.) In what Cases the Performance of an Award

may be compelled by an Attachment, and the

Course of Proceeding to be taken in order to

obtain it.
( I ) Of compelling Performance of an Award by Bill

in Equity.
(K) In what Cases, when, and in what Manner, Awards

may be relieved against.]

(A) The

266 ARBITRAMENT AND AWARD.

(A) The Matter in Controversy.

Roll. Abr. 242. '^/'HERE the right of freehold is in debate, the property can-
14 H. 4. 19.24. not be transferred by an award ; for the arbitrators are in

9 H 6. 6. a. the room of the parties themselves, and act in their stead, as far
T 228 ^^ commissioned; whatever, therefore, the parties can do, may be

Roll. Abr. 244. done by the arbitrators ; but the parties cannot pass corporeal
pi. 14. 9E. 4. inheritances without solemn livery, {a)
44. (a) But if

the condition of an obligation is to stand to the award of J. S. touching such lands, and the
arbitrator awards the lands to one, and that the other should release to him, if he does not do
this, the obligation is forfeited ; if the arbitrator awards the land to one, it seems the obliga-
tion is not forfeited, though the other do not convey to him to make bim a good title ; for
the arbitrator hath not awarded any act to be done by the party ; and the award itself cannot
transfer the right, and so must be void ; and then the condition of the obligation cannot be
forfeited ; for the awarding the lands to one cannot be expounded, that the other shall infeoff
him. If, where there is no bond, the arbitrator award that one shall infeofFthe other, it seems
an action on the case may be maintained for not doing it; for the award in itself is as good as
if there were a bond, and then there is the same reason an action should lie, as that the con-
dition of the obligation should be forfeited ; for if such an award were void, then the condi-
tion of the obligation to perform it could not be broken. Vide the authorities supj-a ; but see
3 Black. Com. 16. Ld.Raym. 115. Kyd.34. to40. [In the year 1417, we find a very import-
ant arbitration by the keeper of the king's privy seal, the chief justice of the King's Bench,
and one of the other judges of that court, arbitrators nominated and appointed by King Henry
the Fifth to settle a long controversy between the bishop and the prior of the church of Ely^
concerning their several claims to ecclesiastical and temporal jurisdiction, and the land of several
manors. Bentham's Hist. Eliz. Appendix 27. c. MSS. Cotton. C. 11. fo. 329.]

Doedem.Mor- ||But though the award cannot convey lands, yet it will estop

^V' . n *^'} one party to the reference from disputing the title of the other
3 East R. 15. . • "^ 1 r I 1 • 1 ^^ 11

party, m whose lavour the arbitrator has awarded.

Johnson v. Where an inclosure act directed that the grass and herbage

Hodgson, upon parcels set out for getting materials, should for ever

and8ee2Chitt ^^"^^^"^ ^o ^^^ for the use of the appointees of the commission-
R. 594. ^^'^i ^"d the commissioners awarded the same to certain sur-

veyors of the highways and their successors, it was held, that
although this assignment was bad as a common law conveyance,
since the surveyors were not a corporation, yet it operated as a
parliamentary declaration of the persons entitled to take, as if
the terms of the award had been enacted in the act of parliament.
Rex V.Cotton, An award, respecting the liability to repair a highway, made
5 Camp. 444. q^i a reference of the question by the lessee of lands charged as
liable, ratione tenutce, does not bind the landlord, who was no
party to the submission. |I

An annuity is not determinable by award, for it is reckoned in
Roll. Abr. 266. "^^"^6 of a freehold, and therefore cannot pass without the deed
pi. 3. of the party.

Roll. Abr. 242. Partition cannot be made by award, for a freehold cannot pass
A. p. 3. V. without livery and seisin.

Roll. Abr. 242. It has been (a) doubted whether leases for years, being chattels
78. 6Co. «!** ^^^'' ^^"'^ ^ transferred by award? Therefore it seems safest
Leon. 104. when the controversy relates to these, that the parties be bound
(«) Am award in mutual obligations to perform the award, and tlien if the arbi-
trators

9 H. 6. 60
14 H.4. 19

(A) The Matter in Controversy, 9l&f

trators award that one shall assign, transfer, 8fc. the lease to the of the arrears

other, if he refuses, he forfeits his obligation. of rent reser-

^ _ ved on a lease

for years, joined with other things of an uncertain nature, is good. Roll. Abr. 264. pi. 5.
Allen, 52. Where an award may be made in waste. 6 Co. 44. 9 Co. 78. Cro. Jac. 100.
Roll. Abr. 266. pi. 9.

The detaining a charter of feoffment, as it relates to a real 9 H. 6. 60.
thing, cannot be submitted ; but an action of trespass for taking
the charter may be submitted, for damages only can be recovered
for such taking.

Debt, on arrearages of account before auditors, shall not be 6 H. 4. 6. a.
discharged by award, because it appears of record (a), and must ^ ^. 5. s. b.
be discharged by matters of as high a nature. j^^jj ^br^ 264

p. 1. contr. 2 H. 4. 18. {a) An award may be made in attaint, because not barely founded on
the record, but also on the supposed false oath. 13 E. 4. 1. b.

Causes criminal are not arbitrable (i), because they ought to .^ „
be punished for the common good. pjjj.^. ^ /^ '

(Jb) Though the submission be by bond, yet the obligation is void, and the parties may be
punished for entering into such bonds. 2 Vent. 109. l|But mixed cases, as assault, libel,
and otlier private misdemeanours where the party injured has a remedy by action, may
be referred to arbitration, although a criminal prosecution has been commenced. The King
V. Blanshard, 9 East, 497. Baker v. Townshend, 1 Moo. 120. 7 Taunt. 422. 8 Term
R. 520.11

Causes matrimonial seem not arbitrable, because marriage West. Symb.

ought to be free, and religion disallows the severing those whom ^f"!",^* § ^^•
»1, «U uu *u • -1 Roil. Abr. 252.

the church hath joined. pi. lo. But the

damages a person sustained by a promise of marriage, or any thing relating to a marriage por-
tion, may be submitted. 16 E. 4. 2. pi. 6. [jSee 2 Bos. & Pull. 444. 1 Dow. R. 235.||

Debts due by specialty cannot be discharged by naked award ; i H. 7. le.t).
but if the submission were by bond the award would be a good I^y^^^i. 6Co»
bar, for one specialty may be dissolved by another. gg' ^I^'q^I'

A certain and fixed debt is not discharged by an award, for the loH. 7. 4.
end and design of an arbitration is to reduce uncertain debts and Roll. Abr. 264,
duties to a certainty ; and to award a man a certain debt is to give ^"* if 20/. be
him no more, nor do any greater thing for him, than was done jj,-,j ^^ and^"*^
before, for now he can have but an action, and that he might another submit
have before; and to give him less than he had before is to do all personal

him a manifest injustice, which the arbitrator cannot do. things, &c. to

*' arbitration,

there, if the arbitrator award 10/. it is a good award, because there were other uncertaire
things submitted, and the arbitrator had consideration of all, and set one against the other in
making the award, so as perhaps the debt of 20/. was diminished in consideration of some
trespasses done by him to the other party. 10 H. 7. 4. Allen, 52. [Godfrey v. Godfrey,
2 Mod. 303. S. P. And so things which cannot be submitted by themselves, may, when
joined with things of an uncertain nature, as debt on bond, 6 11. 4. 6. a. b. Coxal v. Sharp,
1 Keb. 937. Morris, v. Creech, 623. 659. 1 Lev. 292. S. C. Debt for arrears of rent ascer-
tained by a lease, 10 H. 7. 4. Damages recovered by verdict and judgment. Goldsb. 91. 2.}
In debt on arbitration, whereas the plaintiff claimed 40/. pro diversis negotiis, and sets out the
award ; and it was held that the action lay, for the debt being pro diversis negotiis, it was
uncertain what was due for business. Cro. Eliz. 422.

It is holden clearly, that all chattels personal, and personal 22 H. 6. 39. b.

actions, such as trespass, conspiracy, maintenance, 8,'c. may be ^ Co. 78.

determined by arbitration, and the right transferred by naked RoU.^Abr%^42

award

268 ARBITRAMENT AND AWARD.

Of submissions award (a), though the submissionVere not by deed ; for these being

made pursuant transferable by the party himself without any solemnity, whatever

to a rule of ^j^g parties themselves could do may be done by the arbitrators,

vost^^'lluiB). ^vho ^^^ t^^si'' substitutes, and stand in their place : and if on

||^a)'The pro- these submissions without deed the arbitrators award one party a

party in a chat- guni certain, he may bring an action of debt for it; but if they

tel IS not, how- j^^j^j.j ^[^q doinir of some other thing, which is beneficial to him,

ever, trans- , ^ i • f"- .• »u

ferreil by the he must bnng his action on the case.

mere force of an award, without the assent of the party. Thus where on a reference of dis-
putes between a landlord and tenant the arbitrator awarded that a stack of hay should be
delivered up to the landlord by the tenant, on the latter being paid a certain sum in satisfac-
tion, it was held that the tenant, having refused to accept the sum, the property in the hay
did not pass to the landlord by mere force of the award so as to enable him to maintain
trover for it. Hunter v. Rice, 15 East, 100.|1

Keb. 600. The arbitrators cannot make an award of matters different

2 West. Symb. fj-om those which were submitted ; therefore if the submission be
^ * of ewes with lambs, and afterthe submission the lambs are yeaned,

they cannot arbitrate concerning the lambs.
Cald. 30. Rex [An appeal at sessions against a poor-rate may, with the con-
V. Justices of ggj^j. Qf j}-jg parties interested, be referred by the iustices to
Northampton. i -. ^- -, j j

'^ arbitration.]

(B) The Submission ; and therein of the different
fic^^fi^^^l/^ A T^A * Kinds, and the Revocation thereof.

Weitm. Parts, HPHE submission is the authority given by the parties in con-
» *» ^' troversy to the arbitrators, to determine and end their griev-

ances ; and this being a contract or agreement must not be taken
' strictly, but largely, and according to the intent of the parties

submitting.
5 E. 4. 7. Keb. This submission may be by word or deed ; if the submission
600. 2 Keb. be by word, there is no remedy to enforce the party to perform
258. 3 Keb. 64. the award ; but reciprocal actions on the case, and an action of
a. [(6) But ^gj^j^ ^jj^ jjg jf ujQjjgy |jg awarded (i), for it is in nature of a
now an action . , •' ^ "

may be main- simple contract.

tained in all cases upon the submission itself. Purslow v. Bailey, 2 Ld. Raym. 1059. Kyd. 7.]
IJA parol submission cannot be made a rule of court. Ansell v. Evans, 7 Term R, l.||

36 H. 6. 8. [If the submission be by bond, such bond may be given to a

O d *" ^Gib- ^^^^^ person, or even to the arbitrator himself; and it may be
bons Comb, given by other persons than the parties themselves, who will incur
100. the forfeiture if the parties do not perform the award.

Hayes v. It is not necessary that in each of the bonds of submission it

Hayes, Cro, should appear of how many persons the parties to the submission
.ar. \Zo. consist. Thus, where it appeared that there were three brothers,

Richard, Robert, and William ,- that their father had devised cer-
tain lands to the two latter ; and that, several disputes arising
between them and Richard, they had, by bond, submitted to
arbitration ; Richard entering into a bond to Robert and William
jointly, but they giving him separate bonds : it was holden, after
several arguments, on an action brought by Richard against
Robert, that the submission was properly made.

Tlie

(B) The Submission and the Revocation thereof. 269

The submission may be by indenture with mutual covenants Samways v.
to stand to the award.1 Eldsly, 2 Mod.

-^ 73.

If the submission be without deed, it may be revoked without 21 H. 6. so. a»
deed, and the party shall lose nothing, for ex nuda submissione pj^- *^'' ^^'
non oritur actio. j^f-™-' ^„.

81, 82. But the party must give notice of the revocation. Sid. 281.

If the submission be by deed, it is of its own nature counter- § q^ gg gj^^
mandable (a), though made irrevocable by the express words of 28 1. Brownl.
the deed; for the arbitrators being constituted and put in the 62. 2 Brownl.
place of the parties, by their consent, to act for them, they can cannot b ^^
no longer act than they have such consent. countermanded

without deed, quia solvitur. Sec. 8 Co. 80. b. Brownl. 62. If you plead quod revocavit, without
giving any notice to the arbitrators, the party may take issue upon the revocation ; for not to
let them know you have revoked is no revoking ; for de non apparentibus et non existentibus
eadevi est ratio ; but it need not be shewn in pleading, that notice was given, for there quod
revocavit necessarily implies notice. 8 Co. 82. 2 Brownl. 290, 291. \\Acc. Marsh v. Bulteel,
5 Barn. & A. 507. 1 Dow. & Ry. lOb'. S. C.\\

But where a man obliges himself to stand to an award, if g Co. 82, 83-
the party revokes it according to his power, he hath forfeited Brownl. 62.
his obligation, for the making the award becomes impossible tC*) I" 2 Keb.
by his own default, and therefore the obligation is simple ; but if gj j "^^^ ^^^^
it be without obligation he forfeits nothing. (6) is an instance

of an action on the case being maintained for the countermand of a parol submission ; and
there can be no tloubt but an action will lie in such a case, for a parol submission amounts to
a promise to perform.]

II Whether the submission is by bond or covenant, or agree- King v. Joseph,

ment, it is now clear that the party revoking the arbitrator's ^, ."'* '*^^'

.L • • I- 1 1 • ^ / T •" ^ X Marsh v.

authority is liable to an action on the condition or covenant to Bulteel infrct.

abide by the award ; and the arbitrator is right in proceeding to
make an award after the revocation ; and the court will not set
such award aside, though they will set aside the rule to make
the submission a rule of court, if it be subsequent to the revo-
cation, and if the submission be by bond or agreement.

The reason given for not setting aside the award in King v. Clapham v.
Joseph, viz. that it would deprive the party of his action, may be ^ ^ "'p -»
doubted ; since in order to sue on the agreement to abide by the
award, assigning a breach in revoking the authority, it is not
necessary to shew an award made, and the true reason seems to
be, because the court has no jurisdiction after the revocation.
And in a later case, where the reference was under a judge's
order, the Court of Common Pleas set aside the award made
after revocation of the authority.

Whether the submission be by a judge's order or instrument ibid.; and

of the parties, it may be equally revoked before it is made a rule Milne v.

of court; but a revocation afterwards would be a contempt. » I^^'^'ji „

^ 7 East R. 608.

Where the reference is by order of nm /W7M5, the court cannot Skeev.Coxon,

vacate the revocation, or compel the party revoking to pay costs. ^^ Bam. & C.

But if the judge's order, in addition to the terms of subniis-
sion, direct (as is now usual) that either party by affected delay Georf^e*
or otherwise hindering the arbitrator, shall pay costs, such order 2 Barn.*&

may

270

ARBITRAMENT AND AWARD.

may be made a rule of court even after a revocation, in order to
enable the opposite party to have a remedy for his costs.

Aid. 395.;
and see obser-
vations of

Abbott C. J as to the distinction between a reference by judge's order, and by deed; and see
2 Saund. 1 33. c. d.
Charnley v.
Winstanley,
5 East, 266.

Marsh V.
Bulteel,

5 Barn. & A.
507. 1 Dow.

6 Ry. 106.
S.C.

Warburton,
V. Storr,
4 Barn. &
C. 103. Brown
V. Turner,
1 M'Clel. & Y.
464.

28 H. 6. 6. b.
Brownl. 62.

Newgate v.

And the revocation may be either virtual or express. Thus
where the plaintiff declared in covenant against the defendant
Winstanley and wife, on a covenant made by the wife before mar-
riage to abide by the award of W. R., appointed to arbitrate be-
tween the plaintiff and the wife before marriage ; and the plaintiff
alledged that, after the marriage, the arbitrator made his award,
and awarded the wife to pay a sum to the plaintiff on a certain
day, and assigned a breach in nonpayment, after verdict for the
plaintiff it was moved in arrest of judgment that the marriage
being a revocation the arbitrator had no authority to make his
award, and consequently there could be no breach. The court,
however, held, that the marriage appearing to have taken place
before the award was in itself a revocation, and, consequently,
a breach of the covenant to abide by the award ; and therefore
they were bound to give judgment on the whole record for the
plaintiff.

In a subsequent case, where an action was brought on a cove-
nant to abide by the award, the first count assigned a breach in
nonpayment of a sum of money awarded, and the second count
assigned a breach in revoking by deed the arbitrator's authority.
To the first count the defendant pleaded that, before the award
made, he duly revoked the authority, to which plea the plaintiff
demurred. To the second count the defendant demurred, assign-
ing for cause that the plaintiff had not alleged any notice to the
arbitrator of the revocation. The court held that the defendant
was entitled to judgment on the demurrer to the plea to the first
count, since the plea was a good bar to the breach assigned ;
and although the p'ea disclosed another breach in revoking, still
that the plaintiff could recover only on the specific breach al-
ledged in this count; and this case was distinguishable from that
of Charnley v. Winstanley, since there the breach arising from the
revocation appeared on the plaintiff's count. On the second
count the court gave judgment for the plaintiff, since the alle-
gation that the defendant by deed revoked, imported that he
gave notice to the arbitrators.

And if two parties enter into an agreement, not under seal, to
refer, and bind themselves to one another in a penal sum for the
faithful observance of the award to be made, either of them
revoking the authority may be sued in debt for the penalty ; and
assumpsit will also lie in such case, ji

If several plaintiffs or defendants submit themselves to an award,
one cannot revoke the submission without the other, for joint
acts are considered as the acts of one person, and there can be
no revocation without the act of that person that made the sub-
mission.

[If one of the parties first revoke the authority of the arbitra-
tors.

(B) The Submission and the Revocation thereof. 27^

tors, and afterwards request them to make an award, that will Degeldir,
not save the forfeiture. But where the submission hmits no time 2 e . . .
for the making of the award, it shall be understood to be within
convenient time ; and if in such a case the party request the
arbitrators to make an award, and they do not, a revocation
afterwards will be no breach of the submission.

One party may revoke with the consent of the other ; but Noble v. Har-
consent after the revocation will not save the penalty of the "^» ^ ^^^- 745.
bond.]

If a feme sole submits to arbitration, and afterwards marries, 2 Keb, S65.
this is a revocation of the submission; and if it be by bond the j^,°"^n' ^^pV
bond is forfeited, (a) _ _ husband anV

wife submit again, the courts will not encourage the opposite party in suing for the forfeiture.
Samin v. Norton, 3 Keb. 9.] USee Charnley v. Winstanley, 5 East, 266.||

jjSo also the death of one of the parties before the arbitrator Potts v. Ward
has made his award, is a revocation of the authority; and this, i Marsh. R.
whether the submission be by order o^ nisi prius, rule of court, ^6fi. Cooper v.
or otherwise. The court in one case observed, that it would be g Barn. & A.
well if the order of Jiisi prius contained a clause to make the 594. Rhodes v.
award binding, notwithstanding ;,he death of one of the parties, Haigh, 2 Barn,
a suggestion which is now frequently adopted; and in such 9 l/'-^^^rj
case the death does not revoke the authority. g^g . ^^^ ^^^

1 Moo. 287. 7 Taunt. 571. 17 Ves. 232. ; but see contra Bower v. Taylor, 7 Taunt. 574.

Where the order of nisi prius contains such a provision, and Tyler v. Jones,
a power is given generally to the arbitrator to enlarge the time ^ Bam. &
fixed for making the award, the arbitrator may enlarge the time ^^nM
after the death of the party as well as before. 272. 4 Bing.

435.

The death of the arbitrator before award has the effect of Harper v.
opening the cause, (referred at 7iisi prius) so that it may be tried Abrahams,
again.

If a stranger to the cause be made a party to the rule of Rogers y.
reference, he will be liable to an attachment for nonperformance Stanton,
of the award on his part, notwithstanding the suit may have ^ ^""**
abated by the death of one of the parties to it.

And if the arbitrator, by the rule of court, is empowered to Clarke v.
deliver his award to the parties or their executors, the authority Crofts, 4 Bmg.
is not determined by the death of one of the parties before the
award is executed.

The bankruptcy of a party to the reference before award Andrews v.
made, does not operate as a revocation. Palmer,

4 Barn. & A. 250.

But where the reference concerns certain property of the Marsh v.
bankrupt which passes to the assignees by the bankruptcy, the Wood, 9 Barn,
submission becomes by the bankruptcy no longer mutual, since & C. 65^.
the assignees would not be bound by the award ; and therefore,
if the other party revokes the authority, he is not liable to an
action by the assigness.||

If one have judgment in an ejectment, and then the contro- T. JcMies, 154.
versy be submitted to arbitration, but before any award be made

272

ARBITRAMENT AND AWARD.

(b) A matter he sue out execution, it is a forfeiture of the bond, for he is the

was referred cause no award can be made, (a)

b)' consent to

three of the jury, and before the award was made, one of the parties served the arbitrators with

a subpcma out of Chancery, which hindered them from proceeding in the award ; and the

court held this a breach of the rule, and granted an attachment nin. Salk. 73. pi. 10.

Sid. 290. In debt upon a bond to perform an award, and (n/er of the

condition, the defendant pleads 7ion submisit^ the plaintiff needs
not assign a breach, for the defendant puts the whole stress of
his cause upon a matter antecedent to the alleging of a breach ;
for if there was no submission there could be no award, and
consequently no breach of it.

A submission may be made a rule of court, pursuant to the
statute 9 & 10 W. 3. cap. 15. (6); and it is said, that although the

Salk. 73.pl. 12.
(i) Vide Sid.

54. Raym. 35. submission be by bond, yet the party may have it made a rule of
where such ..•' .•' ...»

rules have

been before

this statute.

court; in which case, it is said, he may proceed on the bond, and
likewise have an attachment for not performing the award.

By the 9 & 10 W. 3. cap. 15. it is enacted, "that it shall and
" may be lawful for all merchants and traders, and others de-
" siring to end any controversy, suit, or quarrel, for which there
(c) An arbitra- « jg no other remedy but by personal action, or suit in equity,
" by arbitration, to agree (c) that their submission of the suit to
" the award or umpirage of any person or persons should be
" made a rule of any of his majesty's courts of record {d\ which
" the parties shall choose, and to insert such their agreement in
" their submission ; or the condition of the bond or promise,
" whereby they oblige themselves respectively to submit to the
" award or umpirage of any person or persons ; which agree-
" ment being so made and inserted in their submission, or pro-
" mise or condition of their respective bonds, shall or may upon
" producing an affidavit thereof, made by the witnesses there-
" unto, or any one of them, in the court of which the same is
" agreed to be made a rule, and reading and filing the said affi-
" davit in court, be entered of record in such court ; and a rule
" shall thereupon be made by the said court, that the parties
but if he would " shall submit to, and finally be concluded by the arbitration or
forfeit his a umpirage which shall be made concernino: them by the arbi-

toot let it be " trators or umpire, pursuant to such submission; and in case of
made a rule of " disobedience to such arbitration or umpirage, the party refus-
court ; yet, be- " ing or neglecting to perform or execute the same, or any
cause this « p^j.j. thereof, shall be (e) subject to all the penalties of con-

Ci3.llSG could • y ' V i

be inserted for " temning a rule of court, where he is a suitor or defendant in
no other pur- " such court, and the court, on motion, shall issue process ac-
cordingly ; which process shall not be stopped or delayed in
its execution by any order, rule, command or process of any
other court, either of law or equity, unless it shall be made
appear on oath to such court, that the arbitrators or umpire
misbehaved themselves (^), and that such award, arbitration or
umpire, was procured by corruption or other undue means:
and that any arbitration or umpirage procured by corruption
or undue means, shall be judged and esteemed void and of
none effect, and accordingly be set aside by any court of law

« or

9 & 10 W. 3.
C. 15. Stra. 1.

10 Mod. 332.

tion bond had
these words,
And if the
obligor shall
consent that
his submission
shall be made
a rule of court,
that then, &c.
Upon motion
to make his
submission a
rule of court,
it was ob-
jected, that
these words
did not imply
his consent,

pose, the court
took these
conditional
words to be a
sufficient in-
dication of
consent. Salk.
72. pi. 8. Ld.
Jlaym. 674.
Com. Rep.
114. [Aeon-

(B) The Submission and the Revocation thereof, 273

" or equity ; so as complaint of such corruption or undue sent in the
" practice be made in the court where the rule is made for u"^TT°."xu
*' submission to such arbitration or umpirage, before the last aivard shall be
*' day of the next term after such arbitration or umpirage made made a rule of

" and published to the parties." court, does

not warrant
the making of the submission a rule of court. 2 Stra. 1 178. 2 Barnard, 163. IJBut this case is
now overruled and the contrary is settled. Pedley v. Westraacott, 5 East, 603. Soilleux v.
Herbst, 2 Bos. & Pull. 444. And if the original submission contain a provision that it may
be made a rule of court, this provision will extend to indorsements on it enlarging the time
for making the award, although the indorsements do not expressly repeat the provision, and
the award made within the enlarged time may be enforced by attachment. Evans v. Thomp-
son, 5 East, J 89. overruling Jenkins v. Law, 8 Term R. 87.; and see 2 Barn.& Cres. 179.
The statute does not extend to criminal matters, and therefore a submission of an indictment
for assault at the quarter sessions cannot be made a rule of court. Watson v. M'CulIum,
8 Term R. 520.; and see 2 Dow. & Ry. 265.; nor can the court make an agreement a
rule of coui't on the ground of the parties having stipulated for that purpose, unless the agree-
ment be to refer matters to arbitration. 1 Bing. R. 153. || [A submission may be made a rule of
court on the motion of one party, and producing the bond executed by the other. Barnes,
S5. So it may, though it be no part of the condition of the bond, but be thereunder written,
and not signed, if it appear by af&davit that it was written before the execution of the bond.
Ibid.] II And this may be done in vacation, 5 Barn. & A. 217.1| [{d) The court will compel a
withess to a submission ta arbitration to make affidavit of the execution, in order to make a
rule of court. Stra. 1. Barnes, 58.] A matter being referred by rule of court to the deter-
mination of the judges of assize, it was moved that the judges' determination might be made
a rule of court ; and per Holt, where a matter is referred to arbitrators by rule of court, and
they make their award, we will compel a performance of it, as much as if the award were part
of the rule; so a new rule is needless. Salk. 71. pi. 6. Note ; The constant practice is to
make the rule at nisi prius a rule of the court above, which is always granted on motion,
(e) If one of the parties revokes the submission, or hinders the arbitrators from proceeding in
the award, the court will grant an attachment. Salk. 73. pi. 10. ||But only. where the submis-
sion has been made a rule of court before the revocation, for otherwise it is no contempt.
Milne v. Gratrix, 7 East, 608.; and see 1 Bing. R. 88. 1 Jac. & Walk. 511. though the
party may have his action, 5 East, 266. 5 Barn. & Aid. 507.|1 But if the party dies, there is
no remedy by attachment against his representatives, f6r the contempt dies with him. 2 Vern.
444. If the party accepts to the award, though it be affirmed, an attachment will not be
granted ; for the nonperformance of it, while the matter was sdb,judice, was no contempt.
Salk. 73. pi. 11. 2 Ld. Raym. 857. 3 Keb. 446. Also, the party must be required person-
ally to perform the award, and such personal demand must be made out by aflSdavit, otherwise
the court will not grant an attachment. Salk. 83. pi. 1. (g) On motion* to set aside an
award, because the arbitrators went on without giving the party time to be heard, or produce
a witness. Holt said, that arbitrators being judges of the party's own choosing, he shall not
come and say, that they have not done him justice, and put the court to examine it : alitor
when they exceed their authority. Salk. 73. pi. 11. Awards have been frequently set aside,
especially in equity, where the arbitrators have appeared to have been mistaken, or have been
guilty of corruption or partiality ; as if they have an interest in the thing in controversy.
2 Vern. 251. So where there are three arbitrators, and two of them by fraud or force exclude
the other, or if they have pqvate meetings, and admit one of the parties, and give no notice
to the other. 2 Vern. 514. So where they awarded 495/. against one of the parties for call-
ing the other, who was a butcher, a bankrupt knave, to repair his honour, as they called it.
Vern. 157. So where the submission was to arbitrators, and they had power to choose an
umpire, which they did by throwing cross and pile who should name him ; and for this the
court set aside the award. 2 Vern. 485. IJWells v. Cooke, 2 Barn. & A. 218. ace. But
where each arbitrator named to the other a person for umpire, and neither disapproved of
the other's nominee, but did not like to give up his own, and agreed to decide by lot ; this
was held a vaUd mode of choice. Neale v. Ledger, 16 East, 51. Where, however, it was
agreed between the arbitrators that each should name one person, and that they should then
toss up for the choice of the umpire from the two named, the court set aside the. award, since
here the agreement to toss up preceded the nomination of the two persons, and therefore
there was no opportunity of objecting to them. Young v. Miller, 3 Barn, & C. 408. And a
late case, which seems to overrule Neale v. Ledger, has settled, that the appointment of the
umpire must proceed from the will and judgment of the arbitrators, from choice and not
chance. In re Cassell, 9 Barn. & C. 624.1| This statute does not extend to submission by rule
of court. Stra. 301. [It was made to put submissions to arbitration in cases where no cause
was depending upon the same footing as where there was one, and is only declaratory of what
Vol. I. T the

Q7^

ARBITRAMENT AND AWARD.

the law was in the latter case.] 2 Burr. R. 701. This motion will not be received before sub-
mission be made a rule of court. 2 Stra. 1178.

Cro. Eliz. 839. Submissions are likewise general, as of all controversies, debts,
dues, Sj-c. and here the arbitrators are not obliged to determine
all matters disclosed, but their arbitration of some things will be
good, though they leave other things undone ; but where the
submission is special or conditional, ita quod an award be made
of all controversies depending, they ought to determine all mat-
ters whereof they have notice, because here, by the express
words of the authority, I do not own his determination unless all
matters in controversy are settled ; and therefore to determine
one without the others, is to act contrary to the authority ; but
if upon such a submission the arbitrators make an award but of

Cro. Jac. 200.
355. 8 Co. 98.
Dyer, 216.
Roll. Abr. 257.
Sand. 32.
Brownl. 65.
Vide postea,
that awards
now receive a
more favour-
able interpret-
ation than for-
merly, vide
9 Mod. 252.
2 Stra. 1024.

nne thing, it shall be intended there were no others to make an

and that the

1 Will. Saund.

R. 32. a. n,
Randall v.
Randall,
7 East, 81.
George v,

award of, unless the other side shew there was,
arbitrators had notice thereof.

II This clause o^ ita quod, &c. appears now not to be of much
importance, for, whether the submission contains it or not, if the
reference be of certain specified matters, and the arbitrator does
not make an award upon each of them, the award is bad, and
the court will not enforce it by attachment, and will set it aside.

Lousley, 8 East, 15. Winter v. Munton, 2 Moo. 725. Ld. FAlenborough C.J. in Randall v.
Randall, certainly lays much stress on the clause ila quod, &c. ; and see the remarks of
Willes C. J. in Bradford v. Bryan, Willes' R. 269., and of Chambre J. 1 Taunt. 554.
Ingram v. And so on the other hand, if the reference be general of all

445"^Mtt h 11 "^^^^6*'s i" difference, whether the submission be with a condition
ita quod, &c. or without, if the arbitrator omit to award upon
any matter in difference which is brought before him, the award
is bad, and such omission may be pleaded in bar to an action on
the arbitration bond ; or if the award is pleaded in bar to an ac-
tion, the plaintiff' may invalidate it by replying that other matters
within the submission were brought before the arbitrator on
nap, 1 Barn. & vvhich he made no award ; or if the award is given in evidence
" ^" by the defendant, the plaintiff* may impeach it by giving this
matter in evidence ; however, until the contrary is shewn, the
court will presume that the arbitrator has awarded on all matters
within the submission, and this whether his award be stated to
be de preinissis or not.

If the award is made of matters not within the submission it is
bad, as where the submission was of matters between A. and B.,
and the arbitz-ator awarded on matters between A. and B., C,
and D. jointly, the award was held bad.

But where the award is made of matters partly within the sub-
mission, and partly not within it, it is good for so much as is
mission. II

V. Stavely,
16 East, 58.
Sed vide Sim-
monds v.
Swaine,
1 Taunt. 549.
Gray v. Gwen

see Cargey v.
Atcheson,
2 Barn. & C.
1 70. 2 Bing.
199.

Fisher v. Pirn-
bley, II East,
188.

Ingram v.
Milnes, vbi

"^::ZiT -*in the subm

10 H. 6. ]4.

Latch. 207.

by it.

"pERSONS that cannot contract cannot submit to arbitration,
therefore femes covert, persons compelled by threats and
imprisonment, persons professed in religion, cannot submit.

The

The husband may submit the chattels he hath in right, of his Stile, 351.

wife to an award, for he may dispose of them. March, 77, 78.

If the husband submits to arbitration the chattels the wife has 21 H. 7. 29.

as executrix or administratrix, this shall bind the wife, because Roll. Rep. 269.

the wife cannot personate (a) any one without the husband during Cro. Jac. 447.
^ ^ ' J *= (a) But queere.

coverture. _ ^ For, by some

opinions, the wife, in this case, may submit to an award without the husband ; for when the
husband allows her a power of administration, he must suffer her to act pursuant to the trust
reposed in her, and his express consent to her administration is a tacit consent to all future
actions of that nature, and consequently are his own acts; but whether this makes him liable
to a devastavit is a greater question, because they are not properly acts of administration, and
consequently he never consented to them. Vide 1 And. 117. 181. 5 Co. 27. ||But the wife
cannot submit to a reference respecting her real estate, and the Court of Chancery will not
refer it to the master (as in case of an infant) to say whether the reference would be for her
benefit or not. Davis v. Page, 9 Ves. 550. Emery v. Ware, 5 Ves. 846. But a married
woman who is litigating with her husband for a divorce and alimony, the husband having
filed a cross bill against her, may make a valid submission of all matters to arbitration, though
not regularly separated from her husband. 1 Dow. R. 244.||

[An executor may, as such, submit to arbitration. But if the Dy.26i. Office

arbitrators do not award as much as he would be entitled to at ^^*''' ^^^•

law, it will be a devastavit for the residue. As if an executor ^^^ g^j. ^^

submit to arbitration, and it be awarded, that for 70/. he release submission of

an obligation given to his testator in 100/., for performance of itself is not an

covenants which were broken by the obligor, the 100/.. shall be admission of

c ^\ 1 • • 1 • P assets, rearsoa

assets, tor the submission was his own act. ^ Henry

5 Term R. 9. Where the executor engages himself personally, and in broad terms submits to
pay whatever shall be awarded, he cannot afterwards resort to the plea oi plene administravit.
Barry v. Rush, 1 Term R. 691. jjAnd where on a reference in an action against an adminis-
trator the arbitrator awards that the administrator shall pay a certain sum to the plaintiff, the
administrator cannot resist payment for want of assets. Worthington v. Barlow, 7 Term R.
453. A submission by trustees has been held not to render them personally liable. Davis
V. Ridge, 3 Esp, Ca. 101. Sed vide 2 Chitt. R. 40.1|

Executors are bound by the submission of their testator.] j ^^ Ravm

248. 2 Vent. 249. [[See 2 Bos. & Pull. 151.1|

If an infant submit to arbitration, he may execute or avoid it tt . ,„
at his election, as he may all other his contracts. lo h! 6.' 14!

March, 111. 141. Jones, 164. 3 Lev. 17. Roll. Abr. 268. p. 1, 2. 730. pi. 5. [Equity will
not decree an award to bind an infant. Eq. Cas. Abr. 50. In the case of Roberts v. New-
bold, it is ruled, that a guardian may submit for the infant, and enter into a bond for his
performance of the award. Comb. 318. And in the case of the Bishop of Bath and Wells v.
Hippesley, 28 Cli. 2. cited by Ld. Ilardwicke, 3 Atk. 614., Lord Nottingham held an infant
bound by an award submitted to by the bishop of the one part, and the infant and his guardian
of the other part ; and on a bill to confirm it, decreed accordingly.] [[Where a cause, in which
an infant by his prochein ami was plaintiff, was referred, the court directed that the infant
should have notice of the award, and if he would not perform it the defendant might carry
down the record to trial by proviso. Godfrey v. Wade, 6 B. Moo. 488. The attorneys in
a suit in chancery in which infants are parties have no authority to refer the disputes to arbi-
tration so as to bind infants. Biddell v. Dowse, 6 Barn. & C. 255.; and see 10 Moo. 272.11

Persons attainted or outlawed cannot submit to arbitration,
for they have no property, and cannot by the law controvert any
thing.

A dean without the chapter, a mayor without his commonalty, 21 E. 4. 13.
the master of a college or hospital without his fellows, cannot
submit to an award, for the submission has the force of a con-
tract, and they cannot contract without them.

[If a man authorize another on his behalf to refer a dispute Dyer, 216. b.

T 2 between

276

ARBITRAMENT AND AWARD.

Caghill V. Fitz- between the principal and another, an award consequent on such
gerald, ^ ''yls. submission is binding on the principal alone; and it is no objec-
general, a man ''O" ^^^^ ^^e agent had no interest in the subject of the dispute,
is bound by an But if the agent expressly bind himself for the performance of
award to which the principal, not only the principal who authorized hirp, but
he submits for ^^^ ^ himself, is bound by the award, (a)
another. Alsop ° ' "^ ^

V. Senior, 2 Keb, 707. 718. Shelf v. Bayley, Com. Rep. 18.5. And where an attorney sub-
mits without the express authority of his principal, ||and binds himself personally to perform
the award,|| the attorney only, and not the principal, shall be bound. Bacon v. Dubarry,

1 Salk. 70. 1 Ld. Raym. 246. S. C. Comb. 129. S. C. Carth. 412. S. C. ||See Burrell
V. Jones, 3 Barn. & A. 47. Ex jiarte Hughes, 5 Barn. & A. 482.|| In the case of Evans v.
Cogan, Ld. King thought, that daughters of age and unmarried, might, though not parties to
the submission, by consent subsequent, be bound by an award to which their motlier sub-
mitted, touching the title of an estate which was limited to them after her death. 2 P. Wms.
449. The assent of a solicitor to a reference by rule of a court of equity, it has been holden,
is not obligatory upon the client, without his actual concurrence ; though such a reference,
by rule of nisiprius, will bind the client; 1 Chan. R. 104. 1 Chan. C. 86.; but the former
point may now be doubted. ||And the assent of an attorney to refer a cause will bind the
client though he had expressly ordered the attorney not to refer. Filmer v. Delber,
3 Taunt. 486. j and see 7 Price, 644. ||

Strangford v. If a man submit, for himself and partner, all matters in differ-

228^"'||S ^"^^ between the partnership and another, the partner submitting

2 Bos. & Pull, shall be bound to perform the award ; but the other shall not,
I5i.|| because he is a stranger to the award.

Mudyv.Osam, If the parson on the one hand, and some of the parishioners
Lit. 30. Hetl. Qjj tjjg other, in behalf of themselves and the rest of the inhabit-
ants of the parish, but without the authority of the rest, submit
to arbitration by bond, the parishioners submitting shall alone
be answerable for a breach of the award by any of the other
parishioners.]

II The Court of Chancery will not act under an award in a
charity cause without the consent of the attorney-general, or a
reference to the master to enquire whether it is for the benefit of
the charity. II

If several persons do a trespass, and one of the wrong-doers
and the party to whom it is done submit to arbitration, and an
award is made, the other person shall take advantage of it by way
of extinguishment of the trespass : the same law where the party
releases to one of them ; for in both cases a satisfaction really is,
or is presumed to be made, and a man cannot receive a double
compensation for the same wrong.

If several persons on the one part, and several on the other,
b. 1 Keb. 886. submit generally to any award, the arbitrators have not only
Latch 208. power to determine matters between them jointly, but severally
and distinctly also ; and an award between one only of the one
side and another of the other side is good ; for this is not doing
less than the commission warrants, since there is an authority in
it to determine matters distinctly between them, for the sub-
mission is of all matters, so that it contains as well all things
Roll. Abr. 261. severally between each of them, as jointly between them all, and
Vern "^259^ perhaps there may be no cause of award between the others.

Mansell V. || Where two parties, having separate disputes with a third,

Burredge, agree to a reference, and jointly and severally agree to perform

the

Attorney-
General V.
Hewitt, 9 Ves.
232.

20 H. 6. 12. a.
41. a. Roll,
Abr. 268. (B).

2 Rich. 3. 18.

Roll. Rep. 2
Brown 112.
Yelv. 203.
1 Bulstr. 123.
Cro. Car. 433
Stile, 471

(D) The Arbitrators or Umpire, SSfl

the award of the arbitrator, and he awards separate sums to be 7 TermR.

paid by each to the third, the two parties are liable one for the 352. ; and see

other, and may be jointly sued for the sums awarded. || ^°'^' ^^^» ^^"^

[By statute 5G. 2. c. 30. § 34., it is provided, " that the 5G. 2. c.54.

" assignee or assignees of any bankrupt's estate and effects, §J^^:

" with the consent of the major part in value of the bankrupt's re.enacted^^ "

" creditors who shall have duly proved their debts under the ^88. of the

" commission, and who shall be present at any meeting of the new Bankrupt

" said creditors, pursuant to notice to be for that purpose given ^^'^* ^ ^:^

" in the London Gazette, may submit any difference or dispute additional

** between such assignee or assignees, and any person or per- proviso that if

*' sons whatsoever, for or on account, or by reason or means of one third in

*' any matter, cause, or thing: whatsoever, relatins; to such bank- ^^'"^ of the
„ ^ 11 1.1 I • , ^ ro . ^ .\. creditors do

rupt or bankrupts, his, her, or their estate or effects, to the ^qj. attend at

*' final end and determination of arbitrators to be chosen by the such meeting,

" said assignee or assignees, and the major part in value of such the assignees

** creditors, and the party or parties with whom they shall have ^'*|* f ?i^°°'

" such difference, and perform the award of such arbitrators : commissioners

*' and the same shall be binding on all the creditors of the said may do any

" bankrupt or bankrupts ; and the assignees are thereby indem- of the matters

" nified for what they shall fairly do according to the directions therein men-

"aforesaid." ^ ^ ^ ^ tioned.H

Lord HardwicJce held, that under this clause the creditors 1 Atk. 91. Ex"
could not give a general power to the assignees to submit matters parte Whit-
to arbitration at their own discretion, but that they must have a church,
special meeting, upon notice given for that purpose in the Lon-
don Gazette, to consider of the particular case intended to be
submitted to arbitration.]

II By the 3 G. 4. c. 119. § 13. assignees of insolvent debtors are 5G.4. c. 119.
empowered to refer disputes relating to the estate of the insolvent § is-
to arbitration, with the consent of the major part in value of the
creditors of the insolvent present at a meeting held on fourteen
days' notice in the London Gazette, if the insolvent were in
custody in London, or in the bills of mortality, or if not, then in
some newspaper published in the county, city, or place in or
near which the insolvent shall have been in actual custody, and
with the approbation of one of the commissioners of the in-
solvent court. II

(D) The Arbitrators or Umpire.

nPHE arbitrators are persons indifferently chosen, to determine vVest. Symb.
the matters in controversy according to their own minds, part 2. § 27.
whether they be matters of law or fact : infants, persons excom- Hardr. 44.
municate, outlawed, S^c, {a) may be arbitrators, for every person ^^l A^^' e
must use his own discretion in the choice of his judges; and ti,isp and sad
being at liberty to choose whom he likes best, cannot afterwards the part re-
object the want of honesty or understanding to them, or that ^red to in

they have not done him justice. /u ^' ^^^^^

•' J these very

persons are excepted against as incompetent. In 18 E. 4. 1., and Bro. tit. Arbitrament, 37;,

there is an instance of an unmarried woman, the Duchess of Suffolk, being an arbitress.]

T 3 The

m ARBITRAMENT AND AWARD.

5 Co. 78. The arbitrators are personally trusted with the authority, and

5 Atk. 529. it is not within their power to assign it ; therefore, if an award
Cro EUz 726 ^^ *° ^'^"^ ^° ^^^ determination of a stranger, this is void; but
Palm. 146. ' if the award be, that an arbitrament made by J. S. shall stand,

2 Roll. R. 214. this is good, because it is their own award, though it refers to
Sid. 59. Hardr, the act of another; but though the arbitrators cannot transfer

ti'. '■ o^^r" u their power, yet they may award that others shall do a minis-
504. bo if the .,^.'.7 J J ^ ^ • J u

award releases tenal act m subserviency to their award; tor what is done by

but leave it such persons, is done by them as servants and instruments of the

to the court arbitrators, and is the act of the arbitrator himself; as that such

to give direc- ^ conveyance should be made as counsel should direct, such
tions to setle t', , , ^ i i i . / \ • i i

the form • costs paid as the prothonotary should tax (a), is a good award.

alitor, if they award that the court shall settle the release first, and the arbitrators will after- fl
wards consider whether they shall order it. Ibid. So if they recommend it to the parties a
to appoint a receiver, and if they do not, request the court to do it, the award shall not
be avoided, for it is not a delegation of their power, but a recommendation ; and if the
parties do not comply, it is surplusage. Ibid. 501.] If the submission be to Randolphvs S.,
and the award is made by Randulphus S., the award is not good, because they cannot be taken
to be the same person, being different christian names. Roll. Rep. 271. Sed qu. U a court
would set aside the award for this trifling mistake, if it appear to be the person meant?
[(a) But not as any but the officers of the superior courts should settle. B. R.H.lSl.
2Stra. 1025.]

Cro.Jac.3i5. The arbitrators cannot reserve to themselves a further power,
218 Sid 59 since that would enable them to make a double award, without

the interposition of those who empowered them at first.
sH. 4. i.b. The arbitrators cannot make their award by parcels at several

^"''l^^*"- 250. times, for when they have made an award they have executed
analteratfonlTy ^^^^^ authority, and can do no more(&); and therefore if two
the arbitrator submit all debts, trespasses, 4'^. and the arbitrators one day
in the award, make an award of the debts, and of the trespasses another day,
though only this is not good as to the trespasses, but they may deliberate of
mistake^in* one thing one day, and of another the other day, and then make
figures, is void ^^ entire award of the whole : also, an award made in the night
if made after is good, for the party's attendance is not requisite ; but where an
the delivery of g^t cannot be done without personal attendance of a third person,
andel'en after ^f ^^^^^^ ^e in the night, (c)

it is ready for delivery, and notice thereof given to the parties; but the award in its original
state will stand good. Henfree v. Bromley, 6 East, 309. Irvine v. Elnon, 8 East, 54. How-
ever, if the arbitrator make affidavit of his having committed a mistake, the courts will set aside
the award unless the parties will consent to refer the matter back to him. Rogers v. Dalli-
more, 6 Taunt. 115.; but see 7 Dow. & Ry. 774.11 (c) Cro. Eliz. 676.

Sid. 281. If a submission is made to A. and B., when their occasion will

eb. 10. permit, convenient time must be given after request ; and if no

arbitration be then made, the parties may revoke,
^"•■'is v. II And it is bad plea to an action of debt on an award under a

3 Maiile & S 8^"^^^! submission, that the arbitrator did not make his award
145. * within a reasonable time; for the party should shew a request,

and on refusal, that he revoked the authority of the arbitrator.
Macdougall v. Where the submission was in the Scotch form, and the award
^mng^^35. to be made betwixt the and the day of next,

c Younge & J. p^ ^"7 other day to which the submission might be prorogated,
n. it was held, that the absence of date v/as immaterial, as it was

equivalent

(D) The Arbitrators or Umpire, 279

equivalent to a general authority, to be executed within a reason-
able time. II

If there be a submission to arbitration, and if they cannot Roll. Abr. 261.
agree before the first of May, then the submission is made to jjAndifthey
J. S. to be the umpire, to be made before a certain day then next ^" fact dis-
to come ; if the arbitrators never discourse about the matter, so appo^jj,t an™^^
as there is not any disagreement between them, yet if they do umpire, and
not make an award before the day, the umpire may determine he may make
the matter ; for these words, if they cannot agree, are not to be . unjpirage
taken literally, but only that if they do not make an award, without wak-
that then, S^c, ing for the

day. Smailes v. Wright, 5 Maul. & S. 559.1|

If the condition of an obligation be to stand to the award Roll. Abr. 261

of certain persons, A. and B. and J. S. being umpire for both 262. Osborne

parties, in this case an award by A. and B. is good (a) ; for and Rogton.

umpire, in the common siirnification of the word, denotes a («) i^a submis-

^ SI on uG to tour

person that is to make an end of the matter, if the others cannot. aj,j ^q j^^g yjj,*

pirage of J. S., the four and J. S. may join in making the award j otherwise, if their power had
been divided in the submission, as if it had been to the four, and if they could not agree then
to jr. S. Bulstr. 184. Vide Hardr. 44. Sed qu. In this last case if the five join in the award, is
it not the award of the four ? [If arbitrators join with the umpire in the deed of umpirage,
it is merely surplusage, and the deed is good. The distinction taken in Bulstr. 184. is
absurd. 1 Black R. 46,5. 3 Burr. 1474.] iJSee Bates v. Cook, 9 Barn.& C. 407. acc.||

If the condition of an obligation be to stand to the award of Yelv. 203.
A., B., C, and Z)., ita quod the said award before such a day be Sallows v.
made in writing by the said A., B., C, and Z)., or any two of them, GiUing. For
under their hands, S^c. any two of the arbitrators, without the 50*2X61^57'*
rest, may make an award ; for though by the first part they are q^o. Jac. 400!
bound to stand to the award of those four, yet their power is Moor, 849.
divided by the subsequent words, and the ita quod is but an Roll. Rep. 225.
explanation of the condition, and the whole makes but one V^^^ Bulstr.
sentence. 5^; yButTf"^'*

one die, an award cannot be made after his death. 3 Bro. & Bing. 214.||

If the arbitrators and umpire have the same time allotted them 2 Sand. 131.
to make their award in the submission, as to the umpire it is not w n'^ff ' "^^si
absolutely void ; for if one of the arbitrators die, or absolutely Raym. 137.
refuse to meddle, then the umpire may determine the matters, 1 Lev. 285.
otherwise not; for two different judges cannot have a concurrent Vide T.Jones,
jurisdiction of the same thing ; and a disagreement between the ^^^' ^ » entr.
arbitrators at their first meeting, gives no power to the umpire to
interpose, because, though they do not agree at their first meet-
ing, they may at the next.

The arbitrators may choose the umpire before their own time Roll. Abr. 261.
is expired, for that is no relinquishing the arbitration, but a Cro. Car. 263.
prudent provision in case they should disagree; and therefore an 2 Sand. 132.
award by them at any time before their time expired, is good, LuIw 544*
and an award by the umpire in that time is void. Salk. 70. pi. 2.

S. P. Ld. Raym. 222. 1 2 Mod. 1 20. per Holt, and 2 Mod. 1 69. cant. [In 2 Term R. 644. it is
expressly determined, that the arbitrators may elect an umpire the very instant they begin to
take the matter into consideration, and that this is the fairest way of choosing one.] ||See
Bates V. Cooke, 9 Barn. & C. 407. ace. And so in Harding v. Watts, 1 5 East, 556. the Coqrt
of K. B. determined that the arbitrators might appoint the umpire either before or after the
expiration of the time for making their award, provided he was appointed before the time foi*

X 4 making

^80 ARBITRAMENT AND AWARD.

making his umpirage expired. And if the arbitrators disagree before the time for making
their award expire, they may appoint an umpire immediately, and he may make his award
before the arbitrators' time expires. Smailes v. Wright, 3 Maule & S. 559. And it need not
be stated on the face of the umpirage that the arbitrators had disagreed. Sprigens v. Nash,
S Maule & S. 193. The Court of C. B. have in one case laid down that the arbitrators cannot
appoint an umpire until the time for making their award has expired. Beck v. Sargent,
4 Taunt. 232. ; but this was not the point decided in the case, and the position is not con-
sistent with the cases above ; and see 8 Taunt. 694. The appointment of the umpire need
not be stamped. Routledge v. Thornton, 4Taunt. 704.||

Mod. Rep. The condition of a bond wa.s, if the arbitrators make an award

^^^* on or before 19 Feb. Sfc. ; and if they do not make it before, Sfc.

their authority doth not determine till after the 15th, and the
award cannot be made by the umpire before the 20th.
RolI.'Abr. 261. If the arbitrators have time to the 10th oi June, and if they
r'^Hh^^ agree not to nominate one to determine it by the said 1 0th, here

2 Sand. 132. if the arbitrators choose an umpire, that determines their power;
fufcSalk. 70. for it seems plainly the design of the parties, that either one or
cont. Vide Lev. the Other may determine it by that time, and not that both shall
72^ '1^2^ Ld^' ^^^^ concurrent jurisdictions.

•Raym. 671. 12 Mod. 512., where it is said, that if the umpire be named in the submission, he
cannot make his umpirage before the time given to the arbitrators to make their award be
expired. ||&rf vide suprd..\\

Roll. Abr. 262. If the arbitrators make an award of part during their times,
JlWhere arbi- the umpire cannot make an award of the rest, unless the submis-
the^ordin^anr ^*°" '^^' ^^^' ^^ ^^^ arbitrators make an award of part, or of none,
power to ap- th^n the umpire may make an award of the part remaining or
point an um- the whole.

pire, they cannot determine on some of the questions referred, and leave others to the umpire.
Toliit V. Saunders, 9 Price, 612,||

2 Vent. 1 13 If the condition of an obligation be to stand to the award of

114. Tryppit .^4.^a!id J5., so as the said award be made before such a day; and
and Eyres; if-jhey make no award, then to stand to the award of such um-
threeludge^ pire as the said J. and B. shall nominate, so as the said umpire
tgainst Pollex' ^ake his award before another day, and the arbitrators before
fen C. J., who the first day make no award, but afterwards name C. to be
^^•''h ^h^' ^ umpire, who thereupon immediately refuses, and the arbitrators
Moceedednot- ^ft^^^^^'^s nominate D., who before the last day makes an award;
withstanding ^^^^ is a good award, for the nomination of C. to be umpire did
his refusal; not make him so; but when he refused, it amounted to no more
""''l^ ^"^^ than a bare proposal to him ; and the form of pleading always is f

two com;ur.° suscepto super se onere arbitri, so that it is the acceptance makes '
rent jurisdic- him umpire.

lions in several persons. 3 Lev. 263. S. C. Vide Salk. 70. pi. 2. where, per Holt, if the arbi-
trators choose an umpire who refuses, they cannot revoke or choose again, for they have |
executed their authority ; alitbr, if they choose him on condition he do accept ; but Rooksby
doubted whether an express condition would make a difference, because it seemed to be im-
plied.

Oliver v. Col- jjlt appears (a) that, where one umpire refuses to act, the
aef * Va) To' ^^^"^^^o^s are authorized to appoint another ; but if the umpire
obviate any accepts and acts on his authority the dissenting of the parties is
doubt on this of no avail : the arbitrators have no power to appoint a second. ||
point, which does not appear quite settled, a provision to this effect may be inserted in the

u \

(D) The Arbitrators or Umpire,

281

If the condition of an obligation be, that whereas A. and his Lev. 139, 140.
son of one part, S^c. have submitted to the award of B. and C. Bean and
ita quod^ S^c. before I May^ and if they make none, to the award ^ h* 790^'
of such umpire as they should choose, to be made before the 832.857!s.C.
1 June, and the arbitrators make no award, but choose an um-
pire who makes an award, but quoad the son awards nothing ; this
is a void award, for though the ita quod be in the clause referring
to the arbitrators, and the award be made by the umpire, yet
the ita quod relates by construction to the umpire as well as the
arbitrators.

II Where an arbitrator has power to enlarge the time for making 1 Taunt. 509.
his award to any other day, he is not confined to a single enlarge- 4 Taunt. 658.
ment of the time.

And where the order of reference contained a proviso that the Reedv.Fryatt,
arbitrator should make his award before a certain day, and if he ^ ^J^'^.^^J*
was not then ready that the time should be enlarged, till such ^^^^^ m'thfr *
day as a judge should think reasonable, and the arbitrator en- case was ob-
larged the time, by endorsement, on the day before the original tained before
time expired, but the judge's order was not obtained till after the *^® award was
time expired, it was held that the time was well enlarged, (a) but"where
the arbitrator made his award before the judge's order was obtained, it was held that he had
no authority, and the award was bad. Mason v. Wallis, 10 Barn. & C. 107.

Where the order of reference provided that the award should Tyler v. Jones,
be delivered to the parties, or, if they should be dead before the ^ Bam. & C*
making the award, to their personal representatives before a 2 Barn & C.
certain day, with liberty to the arbitrators to enlarge the time for 179,
making the award, it was held that the arbitrators had the same
power of enlarging the time after the death of a party as before.

Where the condition of the arbitration bond is that the award Greig v«
shall be made before a certain day, and the parties before that n^°*^' « p
day hy deed endorsed, agree to enlarge the time till a subsequent j^g
day, an action may be maintained on the bond for nonperform-
ance of the award made within such extended time ; for the indorse-
ment, operates as a new defeasance in substitution of the first.

But if the subsequent agreement were not by deed, it could not Brown v.

operate as a defeasance, and there would be no remedy on the Goodman,
1 1 I * 1 *u i. II 3 Term R.592.

bond, but only on the agreement. || p^^^ ^1^^^ ^

deed can only be altered or defeated by deed, see Thomson v. Brown, 1 Moo. 558. Davey v«
Prendergrass, 5 Barn. & Aid. 187. Bulteel v. Jarrold, 8 Price, 467., and 2 Saund. 47. s.

[An award made by the umpire merely on the evidence as stated Hall v. Law-
by the arbitrators, without any re-examination of the witnesses, p "^^' ** ^®'*'"
if he were not required by the parties to re-examine them, is
good.]

U Arbitrators in general are bound by the rules of evidence,
which govern the courts of law.

Where the arbitrator is empowered by the order of reference Warne v
to examine the parties to the suit on oath, he may in his discre- Bryant,
tion examine a party in support of his own case, or may waive
the objection to a witness, that he is interested and ought to
have been a party.

Archbowly 2 Taunt. 324. ; sed vide s Taunt. 694*
Arbitrators

1 M'Clel. & Yr

160.

: Barn. & C.
590. 5 Dow.
& Ry. 301.
Lloyd V.

^8^ ARBITRAMENT AND AWARD.

5 Taunts 461. Arbitrators are entitled to a fair remuneration for their trouble,
5 Taunt. 342. ^j, j jj. jg ^ frequent practice to insert the costs of the award in
4 Taunt. 659. ^j^^ award itself; and if an excessive sum is awarded, it is sub-
ject to taxation by the officer of the court ; or if the sum is not
fixed, it would seem the officer may assess it.
1 Bos. & Pull. If one of the parties pay the whole fee for the award, the other
93. party may be compelled by attachment to pay his proportion.

/jirf. And it has been said that the arbitrator may enforce payment

of his fee by attachment.
Styl. 465. If an express promise has been made, it would seem the arbi-

4Esp. N. P. C. trator may sue for his remuneration; but it has been held that

47.; sedvide there is no implied promise to remunerate him.||
Gow'sN.P.C.

'• (E) The Award itself, or final Determination of the

Arbitrators or Umpire.

21 E.4. 39. b. XT ERE we must observe that the courts of justice have of late
10 Co. 57. •■-X jjeen more liberal in the construction of awards than for-
Uyer, 242. merly, and that many of the nicest distinctions to be met with in
the books, are by no means to be admitted as precedents in ex-
pounding awards at this day ; and this the courts do in further-
ance of justice, and for quieting controversies ; however, as an
award is a judgment, and can only be expounded by itself, with-
out the aid of an averment of matters dehors to explain the mean-
ing of the arbitrators, it is necessary that it should appear on the
face of it.

1. That it be made according to the Submission.
Plow. 396. If an award be made of any other thing than what is contained

^^\v-^* ^^ ^^® submission, it is void ; for no act is my own, or binding
V Lethbrid^ °" ^^^ unless done by me, or by commission from me.
13 Price, 533. Prosser v. Goringe, 5 Taunt. 426. Bonner v. Liddell, 1 Bro. & Bing. 80.||
D dlev V If arbitrators award to do an act to a stranger, this is good.(a)

Mallery, 3 Leon. 62. Anon. 1 Leon. 316. [(a) But such an act must appear to be for the
party's benefit. Bedam v. Clerkson, 1 Ld. Raym. 125.]

. ,, But an award that an act should be done by a stranger, is void.

Anon. Moor, , ,. .,.,,.. ■^ o' '

3 p 11^ because he is not within the submission.

Sams V. Pitt, Moor, 559. loCo. 151. But if he hath any remedy in law or equity to
compel the stranger to do it, the award is good. Roll. Abr. 248, 249. Stile, 152. Upon
this principle, an award that one of the parties shall be bound with sureties is bad. Norwich
and Norwich's case. Show. Rep. 82. 5 Mod. 272. S. C. 3 Leon. 62. Thursby v. Halburt,
[An award that all prosecutions shall cease in all actions between A. and B. will not extend
to suits where A. is plaintiff) and B. and others are defendants. Barnardiston v. Fowler,
10 Mod. 204.]

10 Co. 131, If two submit to an award all actions, and the arbitrators

R 437 Vand- ^^^""^ ^ release of all actions till the time of the award, some

lore and Trip, books have said that this is void for the whole, because it extends

Roll. Abr. 242. to things partly in the submission and partly to things out of it,

^,^°'J^^*^^^* and it is one entire act; for, say they, to do that act they are not

Cro Jac^353. °^^'g^^» because not within the submission ; and to do an act

447. 663. relating only to things contained in the submission, is another act

Poph. 134. from what is awarded: (a) others have said that this is not void,

unless

(E) Aisoardi orjtnal Determination of the Arbitrators, ^8-3

unless there are shewn on the other side causes of action arising Sid. S65.
between the time of reference and of making the award, other- 2 Mod. 169.
wise none shall be intended : and then the release only relates to Ca) Hob. 190.
the things in submission. Moor^8*85.

Hutt. 29. 1 Salk. 74. Bunb. 250. [Award of general releases under a special reference
is good for the matters referred, and void as to the rest. 2 Black. R. 1115. So on a sub-
mission by an executor and an administrator in those characters, an award that they execute
general releases to each other, is good, for the court will not intend that any thiug is
ordered to be released except the matters in dispute between the parties. 1 Term R. 691.]
j|8 Taunt. 698.11

But it has been resolved, and seems now settled, that the act sLev. 1S8.
s not entire; for he may release all actions to the time of the 2Mod. 169.
submission ; for though there is one deed of release awarded, j j^ gLev.
yet, that deed relates to several things that are dividable in their 413, 2 Lev. 3.
own nature one from the other, and so it shall be good for what
is in the submission, and void for the residue.

The arbitrators cannot bind a man's liberty or right to real 9E.4.44.
things, where personal things are submitted; and therefore if Roll. Abr 243.
they award service for two years, or a release of the right of P ^^' ^^'
lands in satisfaction for a trespass, this is void ; for nobody can
be supposed to submit more than his personal estate to answer a
personal injury, for that only might be taken in execution for it
by the common law ; and that may be bound to answer it : there- g Mod. 221.
fore if the arbitrators award a horse, money, a quart of wine, in Salk. 76.
satisfaction for a trespass, this is good ; for here a new personal pl-is- Roll-
duty is raised instead of the former, and to satisfy out of the ^' ^'^° ' '
personal estate is necessarily implied in the submission, for this
is a m.eans necessary to quiet the matters.

If two submit to award all quarrels concerning tythes in a Palm. 107.
place certain, and the arbitrator awards that one shall pay to the Roll. R. 362.
other 20/., and the other shall release to him all actions; this 2R0II. R. 192.
shall be intended all actions concerning the tythe, unless the con-
trary appear on the other side, and the actions may be severed;
and this shall be good for the acts in the submission, and void
for the rest.

A submission of all debts and demands, and a release of all 2 Sand. 190.
judgments, executions, and extents awarded, is a good award. Roberts and

A submission of all matters between the plaintiff and another, 20H. 6. is.

and an award made of things that the party hath in right of his s Bulstr. 65.

wife, is ffood; for these things are comprehended under the U"ispomt

, jp ,, ° ^ does not ap-

worcls aU matters. pear in the

case in the Year-Book referred to in Bulstr.]

On a submission of all injuries, an award of all debts, duties, 3Bulst.3i2,
and trespasses, is a good award; for whatever is against law is ^^^*
an injury.

A submission of all actions now depending, and an award of ^ ■n.y ^„

n . 1 p . I 11 1 • 11- 1 T l^ro. EillZ. 66.

all actions, good ; ror it sliall be intended actions dependmg. 358. where
the worcls de et super prcemissis restrain the award to the thing submitted. Cro. Eliz. 861.
8 Co. 97. Cro. Jac. 200. 351. Roll. Abr. 257. Sand. 52. 6 Mod. 252. A submission of
all controversies touching money laid out for his wife when she was sole, at her request, and
the award of 340/. for all sums laid out for the wife when sole, omitting at her request ; this

2B4>

ARBITRAMENT AND AWARD.

is void, because they award another thing than that which is contained in the submission.
Cro. Jac. 640.*

* Qu. If the submission be recited in the award, whether the award shall not bear reference
to the terras of the submission, and be construed accordingly ; i. e. to mean at her requett, and
be good.

[Green v. Under a reference of all matters in difference between partners,

Waring, the arbitrators may award a dissolution of the partnership.

1 Black, R. 475.] ||See 1 Taunt. 549.(

Tattersall v. ||But they cannot award that a part of the sum paid as a con-

Pufn3i^°'^ sideration for the partnership shall be refunded.

Where partners agree to dissolve, and the terms and con-
ditions are to be settled by an arbitrator, he has authority to
award that one shall not during the life of the other carry on
business within thirteen miles of the place in which they had
done. II

So between a master and apprentice, they may award the in-
dentures of apprenticeship to be delivered up.

II So also where it was referred to an arbitrator to ascertain what
particular lands of a certain farm were tytheable to each of two
rectors of adjoining parishes (both parties to the reference), and
to devise all means to prevent future litigation between the parties,

Morley v.
•Newman,
5 Dow. & R.
317.

1 Black. R.

475.

Prosser v. Go-

ringe, 3 Taunt

426.; and see

Miller v.

Robe, Ibid.

461. Atkynsv. and the arbitrator made his award.

Baldwyn,
1 Stark. R.
209.

Stating that

It was impos-

sible to ascertain and distinguish the particular pieces of land,
and awarding certain undivided proportions of the whole ty thes to
each rector, it was held that this award was within his authority.
Where the parties to a suit had entered into an agreement for
Bonner v. a lease of mines for sixty-three years, the lessee to be allowed
Liddell, 1 Bro. three years from 1st Mai/ 1801, for winning the colliery, without
'AB. 80. payment of rent, and to have power to begin to bore and win

immediately, and all matters in difference were referred, with
power to the arbitrator to direct a lease according to the agree-
ment, and he directed a lease for sixty-three years, from 1st Maj/
1804, it was held that he had exceeded his authority, and his
award was bad.

Where an arbitrator to whom a cause was referred before
issue awarded thus, "I award that a verdict in this cause be
finally entered for the plaintiff, with 284/. 12^. damages;" it
was held that he exceeded his authority in awarding a verdict,
and that as the award consisted of only one sentence, that
direction could not be rejected. ||

Under a reference of all matters in difference het'xeen the parties
in the cause, the arbitrators may travel out of that particular
slermR. 645. cause, and take into consida*ation any cross demands between
the parties, though not pleaded by way of set-off: and the costs
being to abide the event makes no difference. But under a refer-
ence of all matters in difference in this cause hetisoeen the parties,
they are confined to the matters in dispute in that cause only.
Smith v. Mul- But this distinction in the terms being perhaps too refined for
-B26 ^fll^B^ ^' ^^ general understanding of mankind, it is recommended {a) to
Bvileri. ^ make the former a reference of all matters in difference between
the parties, omitting the words, -in ihe cause, and the latter, a

reference

-Jackson v.

Clarke,

1 M'Clel. &
"Y. 200.

•Malcolm v.
Fullarton,

(E) Award, or final Determination of the Arbitrators, 285

reference of all matters in difference in the came, omitting hetixeen
the parties.

Assignees of a bankrupt having received a sum of money from Malcolm v.
a debtor to the bankrupt as due to his estate, and having com- Fullarton,
menced an action against the same debtor for a further demand 2TermR.645^
on the same account, to which the general issue only was pleaded,
and this cause being referred to arbitration, it was holden, that,
under the general reference above stated, the arbitrators might
award that the assignees should repay a part of the money which
they had already received, if it appeared to have been paid by
mistake.

A demand as executor may be taken into consideration under Elletson v.

a general reference.] Cummins

o -i 2 Stra. 1144.

There is a controversy between A. and B. on the one part, and Roll. Abr. 244..
C. D, and E. on the other part, and C. for himself, and D. and
E.i submits the matter, and promises to stand to the award ; if
the award be that C. shall pay so much in satisfaction of the con-
troversy, it shall bind him, though it concerns D. and E. who
are strangers to the submission, inasmuch as the thing awarded is
to be done by him, and not by the strangers to the submission.

If there be a controversy between the parson and his parishion- j^^u Abr. 254.
ers, whether tythes shall be paid in specie or not, and they submit (a) If the sub-
all controversies, and the arbitrators award that they shall pay so mission be of

much a-year for tythes : this is good, for that was the debate on ? ^"1*^ depend-
..1 J / \ "^ ° ing m an eiec-

the award, (a) tionefirm^,

and the award be of the right of the land, it is not good. Roll. Abr. 246. If the submission
be of all actions personal, sectis et querelis, they cannot make any award of any real suit, for
the word personal refers to all that comes after the copulative ; but if the submission be of all
actions personal, ac sectis et querelis, they may ; for the word ac makes a plain distinction be-
tween the several parts of it. Roll. Abr. 246. If the submission be of a term, and all that
belongs to it, and the award is made of the rent which shall become due next Michaelmas, the
award is not good, because it may be extinguished by surrender, eviction, &c. before Michael-
mas. Roll. Abr. 245. If the submission be of all actions, they cannot make an award of
causes of actions ; but otherwise if the submission be of all actions and quarrels, for the word
quarrels comprehends causes of action. Roll. Abr. 245.

If the submission be of all controversies to the time of the Roll: Abr. 2431
submission, and the award be that one of them should deliver p. lo- If the
up an obligation made since the submission, in satisfaction of all submission be

matters, Src this is good, because the bond is given only in ^^ ^'^ j^^^^u^

^- c A.- o ' D J depending be--

satisfaction. t^^^n J. and,

B.t an award cannot be made of any action depending by A. and his wife against B. being out
of the submission. Roll. Abr. 246. This must depend on the intention of the parties, where
that can be collected with certainty.

An award maybe good, though part of it be made of a thing p^j. ^j,;,, ,^

not within the submission ; as if an award be to pay 1000/., and Leon. 304,.

to procure a stranger to be bound to pay 22/. per annum, the ^05. Cro. Jac.

plaintiff must lay the breach in not paying the 1000/., for as to ^^f'o^nS?'
*i .1 ^ •. ■ I II -J t J & ' 131. Roll. Rep.

the other part it is wholly void. 4-7 Cro.Eliz.

758. 809. ace. Kelw. 43. Semb. 5 Co. 78. cont.

II If an arbitrator go beyond the terms of the submission to direct Aitcheson v.
the mode in which any of the matters ordered by the award is ^^''S^y*

286 ARBITRAMENT AND AWARD.

p. , to be done, that direction may be rejected as a nullity, as forming

and sefs. C.*' ^^ P^rt of the award. ||
SBarn. &C. 170. sBing. 199. 13 Price, 535. M'Clel.255.

2 Roll. R. 46. If an award be good for part, and void for part, the plaintiff
may assign the breach, that the defendant did not perform the
thing submitted, nee ■performavit in aliquo ; for it shall refer only
to that in the submission, for the rest is void, and not to be per-
formed.
Poph. 134. If the arbitrators award oh one side an act contained in the

Cro. Jac. 149. submission, and on the other side an act out of it, this is a void
award for the whole ; for this is unequal, because there is some-
thing on the one side awarded only, and nothing on the other ;
for what they intended to balance it with on the other appears
to be void.
2 Sand. '293. If the arbitrators award 10/. to one of the parties, and 51. to a

h° '^* ^TT stranger, this is good as to the party himself, and void for the
thVjTrty fof stranger.

life, the remainder to J. S., the remainder is void to the stranger. Cro. Eliz. 758.
Hooper v. || Where an arbitrator to whom a cause was referred at nisi

Hooper, prius found that the plaintiff was entitled to a right of way for

509. carriages, which he had at first claimed by his declaration but

afterwards abandoned, this was held an excess of his jurisdiction,
and the award was set aside pro tanto. ||
Nichols V. ^jj award may be good, though made of less than is contained

Hob 49 Bas- ^^ ^^ submission ; as if the submission be of all actions, tres-
pole's case, passes, demands, and controversies, and the award be made of
8 Co. 98. Mid- some only, this is good; for no more shall be supposed to be
W^T ^r made known to the arbitrator ; and if there be other causes of
Jac. 200. Sal- action in being, and they were made known to the arbitrator,
lows V, Gur- they must be shewn on the other side ; and this as well where
ling, Cro. Jac. the submission is conditional by ita quod (a), as where it is abso-
278. Orme- ^^j.g . f^j. ^j^g award being made de prcemisis {b\ shall be sup-
Cro. Jac.°355! P^^ed to settle all things.

For this vide etiam. Brownl. 63. 2 Brownl. 310. Sid. 12. Dyer, 216. 242. Hard. 45.
[4 Leon. 49. Lutw. 554. Hawkins v. Coclough, 1 Burr. 274. But where the submission is
of certain things specifically named, with a provision or clause, ita quod, the arbitrator ought to
make his award of all, otherwise it will be void. Baspole's case, 8 Co. 98. Hamond v.
Hatch, Goldsb. 125. p. 14. (a) This conditional clause is usually expressed by the words,
" Ita quod de prceviissis : " but the expression, " so as the same award be made and delivered
" by a particular day," admits of a similar construction, the " same" referring to every thing
before mentioned, llisden v. Inglet, Cro. Eliz. 838. A proviso that an award be made on or
before a particular day, implies a proviso that it be made " of the premises," though that be
not expressed. Lee v. Elkin, Lutw. 545. Where there is a provision for the appointment of
an umpire, the conditional clause, if inserted with respect to the arbitrators, extends to
him, though it be not repeated. Bean v. Newbury, 1 Lev. 139.] ||But see ante 274, as to the
clause ita quod, &c. {b) And where an action of tort was referred, and the defendant gave
evidence before the arbitrator of a set-off due from the plaintiflf', and the arbitrator awarded a
verdict for the plaintiff damages 2000/., without expressly noticing the defendant's set-off, the
court presumed that the arbitrator had taken all claims into consideration, although his award
was not stated to be mixAcde prcemissis. Gray v. Gwennap, 1 Barn. & A. 106.; and see Smith
v. Johnson, 15 East, 213. Dunn v. Murray, 9 Barn. & C. 780.1|

Baspole's case, [But where the submission is of certain things specifically
8 Co. 98. Ha- named, with a proviso or clause ita quod Jiat de pramissis
Hatch,Goldsb. ^^ arbitrator ought to make his award of all, otherwise it will
125. p. 14. be void.]

II Thus

(E) Award, or Jinal Determination of the Arbitrators.

287

V. Lonsley,
8 East, 13.

II Thus where the reference was of all actions and controversies Randall v.
between the plaintiff and defendant, and also of and concerning R^fl<>ll>
the value to be put on the hop-poles and potatoes in certain land, and^eeGeorge
and also concerning the rent to be paid by the plaintiff to the
defendant for other land, together with the costs, 8^c. so as the
said award were made and ready, 8fc, 8^c., and the arbitrators
by their award recited that they had heard the parties and their
witnesses, and considered all matters and things referred to them,
and then awarded on the other matters, but did not notice the
rent to be paid by the plaintiff to the defendant, the court held
the award bad, since it appeared on the face of it that a matter
was specifically referred on which no award was made.

So also where there were two causes, one between A. and B. Winter v.
and the other between A. and C, and an order of reference was MV"*""" ^
made, in the first, of all matters in difference, and by a subse- -n ^^2
quent order C. was made a party to the reference, and all matters
in difference between A. B. and C. were referred to the arbi-
trator, so as he made his award of and concerning the premises
on, &c., and the arbitrator made two awards, in one of which
he awarded that A. was indebted to J5., without noticing C, and,
in the other, awarded that A. was indebted to C, without no-
ticing B., both the awards were held bad, as not determining all
matters in difference between all the parties according to the
condition. II

An award of one paiticular thing for the ending of a hundred
matters in difference, is sufficient; as, where the submission was
of all matters in controversy, and the award taking notice of
several matters, ordered the defendant to pay to the plaintiff
four pounds for arrears of rent, and towards the repair of the
house.

Where specific subjects of difference are submitted, but with-
out the conditional clause " of and concerning the premises," it

is said the arbitrator may make his award of any of them, with- ""' ^^^ ^'"g
.,.,,"' *' V. Hammer-

out considermg the others. ton, i Barnard.

K. B. 316. where the general principle, here laid down, is contradicted; ^et vide sw^m that
this principle is not correct. ||

As it is of several particular things, said Lord Coke^ so it is of « Qq gg. a.
several particular persons ; and therefore if two of the one part, Vide2K.3.\8.
and one on the other part, submit themselves, the arbitrator may Bro. tit. Arbi-
make an arbitrament becween one of the two of the one part, '^'•T'!f-"^pf " ^1'
and the other of the other part, and it will be good. 289. Bean v.'

Newbury, 1 Lev. 140. 1 Keb. 885. cont.

"Where the submission was by two plaintiffs on one side, and Joyce v
defendant and his wife on the other, of all matters and contro-
versies between them, " or any of them;" the award was holden
good, though nothing was awarded concerning the defendant's
wife, on account of the words " between them or any of
« them."

\^ A. and B. on one side, and C. on the other, submit to the Arnoldv.Pole,
award of J. S. all matters between them ; J. S. may make an Roll. Abr. tit.

award

[Hopper v.
Hackett,
1 Lev. 132.
1 Keb. 738]

Baspole's case
8 Co. 98. a.

Haines, Hard r.
399.

288

ARBITRAMENT AND AWARD.

vide Garland
V. Noble,
1 Moo. 187.11
Harris v.
Painter, Roll.
Abr. tit. Arb.
O. P. cited in
Lutw. 1628.

Winter v.
White, iBrod.
& Bing. 550.

Arb.D. 5. Car- award of any matter between A. alone and C, for the submission

Tvern sir* ^^^^^ ^^ taken distributively, and perhaps there was no matter

llSee the ob- between B. and C.

servations on this case, 1 Bro. & Bing. 362. 369.\\

Athelston v. A submission of all matters in difference between the parties,

R ^^r^!?"]!^* d when there are more than one on one side, is the same as a sub-
- mission of all matters between the parties, or either of them ;
and therefore on such a submission an award of a sum to be
paid by one of the two or more to the single party is good.

But if, in such case, it appear in the submission that there
were diffeiences between the person on one side, and all the
parties on the other, and the submission be with the provisional
clause ; the award must comprehend all the parties, because the
submission is under a condition that it shall do so.]

II In a late case, where A. B. and C. had entered into arbitra-
tion bonds to D. E. F., reciting that all the six had been in part-
nership, and that differences had arisen between the above
bounden A. B. and C. and the above-named Z). E. F. respecting
the partnership trade, and that it had been agreed between the
above-bounden A. B. and C. and the above-named D. E. F.
that all differences between the parties should be referred to the
award of two arbitrators, and the condition was, that A. B. and C.
should abide by the award of the arbitrators, and a counter bond
in the same form was executed by D. E. and F. to A. B. and C,
and it appeared before the arbitrators that there never were any
disputes between /l. B. and C. collectively on the one side, and
D. E. and F. collectively on the other ; but the differences ex-
isted among the six severally in relation to their joint partner-
ship ; and the arbitrators awarded, amongst other things, that
B. should pay a certain sum to A., the Court of Common Pleas
held that the arbitrator had not exceeded his authority in award-
ing a sum from one of the three parties of the one side to another
on the same side. Richardson J. dissented, on the ground that
as A. could not have sued J5., his co-obligor on the bond, the
submission did not extend to any differences between them in-
dividually, but only to matters between the three parties on the
one side and the three parties on the other. ||

If the award be conditioned to be delivered in writing under

2 Roll. R. 243. hand and seal, the circumstances must be observed, or the award

» n^'/u ^^*. - is void : and therefore if it be delivered under seal only, it is not

Roll. Abr. 245. «» • ^

Cro.Jac.277. SUttlCient.

2 Mod. R. 77, 78. Palm. 97. Lutw. 560. 1 Stra. 116. That the arbitrator, if he cannot

write, ought to set his mark on the award, Bulstr. 1 10.

Carth. 159.

2 Sid. 38.

1 Stra. 116.
Everard v.
Patterson,
6 Taunt. 645.;
and see

2 Saund. R.62.
n. 3. and the

See Bro. Abr
tit. Arbitre-
ment, pi. 44.

Dyer, 243.

Ij However, if it be averred to be under hand and seal, it will be
intended to be in writing. But if it is only averred to be in
writing, this is insufficient, since it cannot be intended to be
under hand and seal ; and if the submission is " so that the
arbitrators make their award under their hands" it is insufficient
to aver it to be " duly made in isoriting" without adding under
their hands.^

cases there collected.

(E) Award, or Jinal Determination of the Arbitrators, S89

If two submit all actions till the ninth o^ June, ita quod arbi- Roll. Rep. 562.
trium fiat de pramissis, and an award is made of all actions till the 1 i; ^^^
seventh, some have said this is less than the submission, and void ; 017. Cro Jac*
but the better opinion is, that this is well enough, especially 578. 8 Co. 97.
unless there be shewn on the other side an action arising between lis East. 4S0.|1
the seventh and ninth.

[Where the submission to an award was that it should be made Knox v. Sim-
on or before the first day of Michaelmas term, and the time was p^"^^W^ ^5°*
enlarged until the first day of Hilary term. Lord T/iurloiso held
that an award made on the first day of Hilary term was good,
that it was an enlargement of the time iti statu quo, and therefore
must include that day.

The awarding of costs is incidental to the power of an arbi- 2TermR.644.
trator : a provision therefore in the reference that the costs shall
abide the event of the award, is a restriction of the power which
he otherwise necessarily hath of giving costs at his election.

By the terms event of the award, must be understood the legal sTermTl.issi

event, and therefore under this provision the party shall pay only Swinglehurst

such costs as he would have been liable to pay if a verdict had Tj u ^'"' j

1 • 1 • «-i IP 1 n 1 1 • rimgnam, and

passed agamst him. Costs thereiore shall not be taxed agamst another exe-

executors, nor shall plaintiff be entitled to any, if his original de- cutors, v. Has-
mand be found by the arbitrators to be under forty shillings, sell, Hil.
So where in an action of trespass for pulling down the plaintiff's q' ''/, \t^
gates and assaulting him, the defendants justified to all the 23G.5. K. B»*
counts except one under different rights of way, and pleaded
not guilty to the whole, and the arbitrators awarded the defend-
ants aright of way, but different from those claimed in the pleas,
and gave five shillings damages for the assault, which they found
was committed in the exercise of the right of way negatived by
the arbitrators ; it was holden that the plaintiff was entitled to
no more costs than damages ; for the arbitrator's award is not
equivalent to a judge's certificate under the statute of 22 & 23
Car. 2. c. 9.

An award to the plaintiff of " the costs by him sustained in Bsfewne v.
" the said action to be taxed by the proper officer," does nQt«>^arsden, 1 H.
include the costs of the reference, but is confined merely to tho^e ' ^" ^^^'

of the action.]

2. It ought to he certain.

As an award is in nature of a judgment, it ought to be 5 Co. 77. Sal-
wholly decisive ; for if it doth not determine the matter, it mon's case,
becomes the cause of a new controversy : therefore if the arbitra- Cro. Eliz.432.
tors award a bond for qiiiet enjoyment of lands, without ap- g'," ^ ;",
pointing a certain sum, this is a void award, and the party is not Moor 359.
obliged to give bond to the value of the land ,• for then the sense S. C. Roll,
of the award must be supplied by averment: now if it hath the Rep- 271.
credit of a judgment, there can be no interpretation made of the y T'^'oo^^'-ri
award, but by the words of the award itself; for if it receives certainty of an
its meaning from any matters out of the award, the mind of the award may bg
arbitrators is only guessed at, and not expressed : but the parties judged of ac-
intended to be obliged only by what the arbitrators themselves cording to a

Vol. I. U declare

290

ARBITRAMENT AND AWARD.

common in- declare to be their award ; and were the bond to be according
tent, and con- jq the value, they cannot assign their power to any person to

sistent with *u i

fair and rea- assess the value.

sonable presumption : therefore, where the submission was in general terms, " of all actions,

&c.," and the arbitrator recited one, which was in fact depending, referring to the submission,

as authorising him to determine it, the award was holden sufficiently certain, for there was no

Erobable presumption of any other cause of complaint, the parties not having desired to be
eard upon any more than that one. Hawkins v. Coclough, 1 Burr. 274.]
Cro. Jac.314. So if the arbitrators award that one party shall give security
Thine and j.^ ^.j^g other for the payment of 1 6l., this is not a good award,
348. ^S. C. because it does not appear what security, whether by bond or
2 Stra. 1024. otherwise.

S. P. An award to enter into an obligation for the payment of a sum of money, without
mentioning the sum, is void for uncertainty. Lev. 88. Sid. 270. jjAn award, finding a debt
due, but containing no order to pay it, cannot be enforced by attachment. £dgell v. Dalli-
more, 5 Bing, 634.||

Simtnonds v. || But in a case, where the arbitrator awarded that the de-
Swaine, fendant should pay to the plaintiff a certain sum, to be paid, or

secured to be paid, within a week from the award, and the
.J?- plaintiff assigned a breach that the defendant did not within a

week pay, or secure to be paid, ^c, the court held the award

sufficiently certain, and gave judgment on demurrer for the

plaintiff.
Lawrence v. An award that A. or B. shall do an act is bad for uncertainty. ||

Hodgson, ] Younge & J. 16.
Roll. Abr. 264.
p. 9. Massey
and Aubrey.
Stile,365.S.C.

If the condition of an obligation be to submit to an award all
controversies between A. and B.^ and an award is made that A'
shall permit B. to enjoy certain leases of lands purchased from
J. S., and that B. shall pay the rents, and perform the covenants,
and deliver to A. a true copy of the leases, and pay the arrears to
the time of the purchase from J. S., this is a good award as to
the rents and covenants, though not particularly specified ; for
though generally it is true that an award is to be interpreted by
its own words, and not by any matter out of the award, which
doth not appear in the words ; yet when the words of an award
have relation to things certain, out of the award, these things
may be averred ; for that is the express mind of the arbitrators,
which they have expressly referred to ; but as to the arrears the
award is void, because they have not referred to any matter
that falls it hin the cognizance of ^., for he cannot compel A.
or J. S. to set the time of the purchase ; and an award of what
cannot be certainly done is not a certain determination.

If an award be that one shall acquit the other of an obligation
of 200l. out eo circite7\ and the party is bound in an obligation
of 105/. aut eo circiter, this is a good award.

If an award be that one shall pay the other 6/. on the twenty-
first of May, and that the other shall release his right in certain
lands pi'tsdict, p7'imo die Mail, omitting vicesimo, not good, be-
cause there was not any such former day before mentioned, and
so the mind of the arbitrators not understood.

Roll. Abr. 263.
p. 8. March,
18.S.C.

Roll. Abr. 263.
p. 6. 254.
p. 15. Mark-
ham and Jen-
nings. Yelv. 97.
S.C. Brownl.
92. S. C. Cro. Jac. 149. S. C.

Roll, Abr. 263. If an award be made between A. and B. touching certain quar-
ters

(E) Award, or final Determination of the Arbitrators, 291

ters of malt delivered by A. to J5., that B. shall pay to A. so Hurst and
much for every quarter, as a quarter of malt was then sold for, Cambridge,
this is void; because not said at what market price; for one
market may be much dearer than another.

[An award, " that the defendant shall deliver certain goods Cockson v.
*' particularly named, and three boxes, and several books, with- Ogle, i Lutw.
*' out naming the books," is uncertain : the books should have ^^^'
been particularly described, unless it had been said that the books
were within the boxes, by which they would have been sufficiently
ascertained. So, an award " that one of the parties shall de- Bedam v.
" liver up to the other a certain writing obligatory, or a certain Clarkson,
*' bill obligatory which he had before," is altogether uncertain, ^ ^^- ^^aym.
for it does not say of what sum, or of what penalty the bond is,
or of whom it was obtained.]

li A. aud B. merchants, and C. and Z>., with all the other Roll. Abr. 249.
owners and mariners, submit to the award of ,7. iS., concerning a ^*''^» ^^^' „
ship taken by way of reprisal, and A. and B. enter into an obli- • ■« • •
gation on one side, and C. and D. on the other side, and 1000/.
is awarded to C. and Z)., to the use of themselves and the rest of
the owners and mariners, this is a good award, though every
man has not a certain allotment, for C. and D. submit jointly in
the name of the rest ; and therefore an award of any thing to
them as one person, without subdivision, is good ; and C. and
Z). being intrusted for the rest, they are bound to make a reason-
able division ; if not at common law, at least in Chancery.

If an award be made that A. shall pay B. his day's work, and 2 Sand. 292.
task work, and B. shall then pay 25/. to A., and then they shall Pope and
make each other general releases, this is a void award, and can- _Jg 'g q^ '
not be helped by averment that he paid such a certain sum for
day's work and task work; because the award is void in itself,
by not settling the certain sum ; and if that is void upon which
the subsequent payment and releases are to be made, the whole
award must be void.

An award is made of 40/. and mutual releases ; but if it shall Winch v.
appear to the arbitrators that one of them stands obliged, Sfc. ^^^^^^^'^^^
that then so much shall be deducted, this makes the whole Paim. 145.
award void ; for it is uncertain how much will be due ; but if the S. C.
award had been that if any bill of debt appears to such a sum,
that this sum certain should be deducted, this perhaps would
have been a good award ; and though he awards mutual releases,
which would make a final end of all, yet it appears it was to be
after payment; and therefore that part of the award shall not
stand alone, for that is contrary to the intent of the award ; so
if the arbitrators make an award with a proviso (a) at the end (a) Kinge y.
of it, that if they do such an act the whole award shall be void, ^^"es, 1 Sid.
the whole award is void ; for the award ought in present to be
certain.

An award that one shall pay part of the charge of the voyage, Roll. Abr. 251.
and allow his part of the loss that shall come to the ship upon pi. h. An
account, is good ; for it may be reduced to certainty. ^**"*'* ^^aniw^

shall account with the other, not good, because the matter not settled. Fitz. Abr. tit.

U 2 Award,

292

ARBITRAMENT AND AWARD.

the un- 1

tenants i

Award, 57. An award that one shall pay a moiety cvjusdam debili,&c. held not good, for the
certainty. Roll. Abr. 263. Qucere? And vide 6 Mod. R. 231. where an award that joint-tenants
should make partition by mutual conveyances, though it did not point out what part each of
the parties was to have, was holden good. [jSee Cargey v. Aitcheson, 2 Barn. & Cres. 170.
sBing. R. 199.||

Wohlenberg ||So also an award that two parties should pay a certain debt

V. Lageman, jj^ proportion to their several shares in a certain ship, without

specifying what those shares were, was held sufficiently certain,

since there was no dispute referred, as to the amount of the

shares.

So an award which directs an executor to pay a sum out of
assets, but which does not determine whether he has assets, is not
void for uncertainty.

So where the declaration contained eleven special counts for
negligence, and also common counts for money paid, Sfc. and the
arbitrator, under an award of nisi prius, found that the plaintiff
had good cause of action for 23/. 14ts. lOd., and directed a
verdict to be entered up for that sum, it was held sufficiently
certain. II

If the submission be of 200 acres, called Kelstorne Ling, and
the award be concerning the waste lands in the town of K. this
award is void, and cannot be helped out with an averment ; so if
money be awarded to be paid by one, and it is not said in satis-
faction of what he owes the other, that cannot be averred.

If an award be that one of the parties shall pay to the other so
much as is due in conscience, this is a void award.

Love V. Hoy-

neybourne,

4D0W.&R.

814.

Dicas V. Jay,

5Bing. 281.

Dyer, 242.
Roll. Abr. 263
p. 5.

Salk. 76
SSalk. 498.
2 Ld. Raym.
1076. Ai-note
and Breame;
by three
judges against

Holt a.

who seemed

Stile, 28.
Five pounds
awarded for

quit-rents and other small things, void for the uncertainty. March, 144.* An award to pay so
much money as such land is worth, void for uncertainty. Skin. 248. arguendo. [In the case
from March an infant was concerned.]
* Qm. If it is a final payment ?

6 Mod. R. 244. If ^. commits a nuisance to B. by erecting scaffialds on his
own ground, and the arbitrators award that the scaffialds shall
be removed, it must be understood that they are to be removed
by A. on whose grounds they are ; for though any person may
by law remove a nuisance, yet the arbitrators, who are judges of
equity as well as law, must be understood to intend it of him who
committed the nuisance, and therefore the award not void for
uncertainty,
of a contrary opinion.

Bealev. Beab, An award to pay the charges of such a suit, is good; because
Cro. Car. 38.3. it is the intent of the arbitrators it should be reduced to a cer-
versed" ^ " *^^"^y ^7 ^^^ attorney's bill, who is the only person that can know
2Venr242. the certainty, [a)

Linfield v. Feme, 3 Lev. 18. But vide 3 Lev. 414., where the award was to pay all expenses
of a suit, and all reasonable expenses circa sectum prced ; and it was admitted per cur. to be
void for uncertainty; but to pay such costs or charges as the master or prothonotary shall
tax, has always been held good. Sid. 358. Carth. 156. 2 Wils. 267. 1 Barnard. K. B. 463.
(a) And the proper officer of the court may tax it. IJCargey v. Aitcheson, 2Barn. &C. 170.
sBing. R. 199.||

An award was, that one of the parties, he, or his executors,
should release ; and my Lord Holt inclined to think that it may
be construed that he and his executors should release.

[An

Salk. 6». pi. 1.
Ld. Raym.
247.

(E) Awardy or Jinal Determination of the Arbitrators

fi9S

Wats V.
Philips, 1 Keb.
335.

Rosse V.
Hod pes, 1 Ld<
Raym. 234.

(a) 3 Lev. 18.
Kyd, 136.

Kockill V.

[An award " that the one shall seal and deliver a demise to
" the other, or his assigns, is certain enough ; it shall be under-
*' stood to himself."

An award " that the plaintiff shall pay the defendant a certain
" sum on a particular day, and that then the defendant shall
" reassign the land mortgaged to him by the plaintiff," is suf-
ficiently certain, though it do not say for what term the re-
assignment shall be, whether for years, life, or in fee; for it
shall be understood to be for the whole interest mortgaged.

It is no bjection to an award that it is conditional, as that one Ferser v.
of the parties shall enjoy a house for three years and a half, and Proud, Cro.
shall pay his rent every half year ; and that if he fail in payment, figy'^^ pgn^'"""
the award for the enjoyment of the house shall be void. So
that he shall pay the other 10/. on condition that each shall
acquit the other (a) ; for it shall be taken as a positive injunction
that they shall acquit each other.

So it may be made with a penalty to attach on the nonper- v^'^!j!"ral
formance of a preceding part ; as to pay 1 21. on two several days, 2 Keb. 838.
and on default of payment the first day, to pay the whole 12/#
immediately after.

Where it is left to a subsequent event to ascertain precisely the Collet v.
thing awarded, it will be sufficient if that event must necessarily Powell, 2 Keb*
happen ; as if the submission be with respect to a way leading ^ Goddard^^
to a house, and the award be, that the one shall give a bond of 7 Term R. 73.
300/. to the other, payable at three years' end ; and in case the Storke v. De
way be taken away, then that he shall pay less by a certain sum, p*"^^^,' ^^'^^^
and if not, a certain sum more. * '"

An award in the alternative, that the party shall do one thing Kyd, 137.
or another, is not liable to the objection of uncertainty: for tee v. Elkms,
when he has done one of the things he has performed the award;' j ° '
as if the award be that he shall deliver up to the other party a g. C. ||See
certain deed, or pay him 50/., and such an award in the alterna- Simmonds v.
tive seems to be the best mode of compelling a party to exert him- Swaine,
self to procure the performance of what is not immediately in his ^"" ' '^
power.]

3. It ought to be equal and mutimlly satisfactory.-

Awards must not be on one side only; this must be understood Roll.Abr. 253.
thus ; that all controversies being between two parties, that which- 8 Co. 98.
is awarded to be done to one must be an advantage to both, so
as to end the controversy, and discharge one, as well as give
satisfaction to the other ; for if it doth not, it is manifestly unjust;
and therefore, whenever it appears to the court that, notwith-
standing the award, the thing remains a duty as before, and is n
not discharged, that apparently is an award on one side, and con-
sequently is void ; not that where one party is by the award to
have something paid him, or the like, and not the other, that that
award should be naught ; for perhaps nothing may be due to him, ^^
and he might be the only trespasser in the case.

Thus in case of a trespass submitted, the arbitrators award that Roll. Abr. 953,

U 3 one

294 ARBITRAMENT AND AWARD.

254. Hob. 49. one shall pay the other 3l, this is void, because only on one side;
d b tf"t ^^^ ^^ ^^ "°^ ^^^^ ^°^' ^^^^» ^"^ ^^ *^^ trespass is not discharged,
the obligor in ^"^ ^^^^ the Other party hath no advantage by the award : but if
a singlebond it were awarded de et super pramissis, it woiild be well enough ;
shall pay the likewise if the award had been that he shall pay 31. for a trespass,
h d"b^' ' ^' ^^^^ ^^^^ good, and yet one only was to do an act, but then the
award, without trespass by that award had been discharged, (a)
saying that he should be discharged ; for payment, without a discharge and acquittance, will
not discharge a single bond. Hob. 49.

7 H. 6. 40. j[, and B. submit all actions had by A. against B., and all j

^o^-^^'^53, actions by B. against A., and the arbitrators award that A. shall W
the award g° ^"^^ of all actions had by B. against him, this is naught; be-

recite a tres- cause they say nothing as to the other actions,
pass committed

by the plaintiff against the defendant, and another hj the defendant against the plaintiff^ and
for that reason order, " that the one shall be quit against the other, and the other against
**hiinj" the objection of want of mutuality will not lie against it. 7H.6. 41. 21H.6. 9.
22 H. 6.59. Bro. Arbitrament, p. 55.

Cro. Jac.314. -^^ award that one should have such trees, and that the other

An award was should give him security to pay 16/., is void; because it is not

made that one certain what security ; and then that part of the award being void,

**/ , jP^*"^'^^ the other part must be void too; for else it would be an advantage
should be , ,^ ' *=

bound with to one only.

sureties, such as the other should approve, in the sum of 150/., to be paid him at such a time,
and that they should seal mutual releases ; and the court inclined that the award was void ;
for if the party did not like the sureties he was not to seal a release, so it is but an award of
one side. 5 Mod. 272, 273. IJBut see Simmons v. Swaine, I Taunt. 549., that an award to
pay money, or give security for it, is good.]!

Roll. Abr. 255. If one party alone be ordered to do something, and nothing
else appears to the court, it shall be presumed that he alone was
the wrong-doer, and the award is good, if it appears that he is
by the award discharged of all actions that might be brought
against him for that wrong; but when it appears that the arbi-
trators design both parties satisfaction for the wrong done each
of them, there, if the satisfaction designed one be not well
awarded, the whole shall be void for the partiality.
Ibid. 251. A naked award is no good plea in trespass, unless something

be awarded to the plaintiff in amends ; for if there be no trespass,
there is nothing about which an award can be made ; and if there
be one, and the arbitrators do not award satisfaction, they do
not act according to the design of their institution, for they are
not indifferent, and so there is no good award.
Id.Und. If trespass be of beasts taken and determined, and they arbi-

^h ^\^'^^^'^ trate that the owner shall have the beasts again, this is void, for
shall have oar- ^^ ^^ against natural justice to give him his own again, without
eel of his own satisfaction for the unjust taking and detention,
goods. Vide 1 Roll. Abr. 252. If an award be, that whereas the parties are indebted each to
the other 40l. they should acquit each other, a good award ; the same law where each have
done the other a trespass. Roll, Abr. 252.

Roll. Abr. 252. An award that one shall go to Borne or Panl% not good,

because to nobody's advantage.
dE.4. 44. An award that two shall intermarry, no good award, for that

ought

(E) Award, or final Determination of the ArhUrators 295

ought to be at the parties' choice ; and the bodies of the parties Roll. Abr. 252.
are not submitted to the power of the arbitrators.

If the award give satisfaction for slanderous words spoken of Sid. 178. If
a man about a crime which it appears was pardoned, that award there be an
is void; for if the crime be pardoned, no harm could come to Sl'^a^^so"^
him by speaking them, therefore the award is unequal. much money

for costs in a suit for words, the words must be shewn, otherwise it doth not appear that the
award is just and equal. Sid. 12. Firfe sVent. 242. this case cited; and there the court
seemed dissatisfied with this opinion, and said that Siderfin was but a young reporter.

If an award be, that if one will make his law that he did no 46 E. 3. 17. b.
trespass, that then he shall go quit, it is not good, for that cannot ^^jj Abr '^261.
be pleaded in bar of an action ; for it supposes, contrary to the Dygj^ 555.
submission, that there waa no trespass; neither can it be averred
that the award was for the same trespass the action was brought
for, for it supposes no trespass.

There are controversies between A. and JB., and A. and C. as Carth.4l2.
attorney to B. submit to an award, the arbitrators award so much Bacon and
money to A.^ and tiiat A. and C. shall release to each other, to Dubarry. Salk.
the use of each other; this is void, because the award is on one Ld'uairn 245'
side; for B. cannot take advantage of the release, for that is to skin. 679*.
the use of C. Comb. 439.

12 Mod. 129. 1 Wils. 28. 58.

The award may be beneficial to the party, though a thing is 3 Leon. 62.
awarded to be done to a stranger to the submission ; as if the But an award
arbitrators award that one of the parties shall pay money to the *° "^^l^^l^^^
servant of the other. stranger is said

to be void. Roll. Abr. 247. But vide Salk. 74. pi. 13., where, by Holt, it is good, and shall
be intended for their benefit. But an award that the parties shall in such proportion dis-
charge a debt by bond in which they are jointly bound, is good, though the obligee be no
party to the submission. Roll. Abr. 247. If two brothers submit to arbitration, and one of
them is awarded to pay so much to his mother yearly, this is good; /or the payment being to
be made to his mother, shews it to be a benefit to him. Salk. 74. No judgment was given in
this case. '

If an award be to pay so much money in discharge of all 2 Roll. R. 1.

actions, a release shall be intended to be awarded, unless the ^But see Ni-

. , , 11.1 chols V. Gran-

contrary be shewn on the other side. y,\^ Brownl.

58. Hob. 49.] An award is made super prcBmissis, that one shall pay 20/. to the other at Mi'
chaelmas next, and then the other shall release to him all actions personal ; this shall be under-
stood a release to the time of the award, not till Michaelmas next. Roll. Abr. 256.

[An award that all suits shall cease, is equivalent to an award Strangford v.
of a release. ^'■^^"' 2 Mod.

228.

So that all " controversies " shall cease, and that the one shall „ „ , .
pay \2d. to the other, although he have nothing given to him. ^^^j. ^j^^ jq

Harris v. Knipe, 1 Lev. 58.
An award was made " of and upon the premises," that one Roll. Abr. 254.
should pay the other 10/. at a certain day, and that the parties P''^*,,!^^!'
aforesaid shall continue in love and friendship as formerly; it ^^^^ without
was holden to be an award on both sides, and that it should be the words " of
intended in satisfaction of all matters between the parties, more "and upon the
especially as it was said, that the parties should be friends as " premises,"
formerly. such an award

•' would now be

considered conclusive, unless it was clearly shown that other matters were brought before the
arbitrator, on which he had made no award. Gray v. Gwennap, 1 Barn. & Aid. ]06.||

U 4 An

^96 ARBITRAMENT AND AWARD.

Ormeladc v. An award " that the one shall pay 10/. to the other in satis-

^°^^£b'4^''' " faction of a trespass," is good: for both parties have benefit,
1 Freem. 285.* ^he one receiving money, and the other being discharged of the
266. (a) Hop. wrong. So an award "that one shall pay so much j^r arrears
perv.Hackett, « of rent (a)," the word /or implying that it is to be in satisfac-
filHawkins *^°" °^ ^^^ arrears. So for having made the first breach in the
Coclou^hr ^ law, implies that the sum awarded shall betaken in satisfaction. (6)

1 Burr. 277.

Elliott V.Che- An award recited that there had been considerable dealings
vail, Lutw. between the plaintiff and the defendant, that the plaintiff had paid
to the defendant all his demands, and that 40/. were due to the
plaintiff, and then ordered that the defendant should pay that
sum to the plaintiff. It was holden that the recital of the deal-
ings between the parties, and of the payment by the plaintiff of
all that was due on his part, implied that the payment of the
40/. by the defendant was intended to be in full satisfaction of the
debt.
Kyd, 155. It seems now not to be necessary that an award should express

Tomlinson v. that a sum awarded to be paid, or an act to be done, in favour
R^"* sTs^""* °^ *^"^ °^ ^^^ parties, shall be in satisfaction ; or that it should
Cooper V. contain any equivalent terms : a discharge to the other must
Hirst, Lutw. necessarily be presumed from the payment of the sum, or the
559. performance of the act.]

4. It must be of a Thing lataftd and possible.

Roll. Abr. 248. If the arbitrators award a thing impossible ex natura rei, it is
(c) If they void (c); but if they award a thing which cannot be done, but
award a sum not in the nature of the act itself contradictory or repugnant,
bepaid^ata ^^^^ may be a good award {d); for there is no construction to be
day past, it is made of the award, but by the words thereof.

void. 8 E. 4. 1. b. If they award that a man shall make an obligation immediately, this is
no good award; for time is required to the making. 18 E. 4. 21. But qucEre, and mde

2 Brownl. 311. and Salk. 69. pi. 1. {d) As an award that one shall pay 20/. where he hath
not 20rf. is good, for no contradiction appears in the award itself. 19 E. 4. 1. Awards that
one shall turn the river of Tliames, kill, steal, forge a deed, &c. are void. Co. Lit. 206.

Roll. Abr. 248. If an award be that one shall make a feoffment to another of

an acre, and immediately after deliver the charters ; this is good,

because they may be delivered in the same instant.

Leon. 316. An award that a stranger shall do an act is void (<?), because

Hard"46^^' ^"^ther in his natural freedom is not supposed within my power.

Moor, 3. 359. {e) But an award to do an act to a stranger is good, because it obliges only to
an endeavour; and this shall be supposed to be for the other party's benefit. Leon. 140.
10 Co. 131. Roll. Abr. 249. Roll. Rep. 270. An award to be obliged by sureties, void as to
the sureties. 2 Sand. 537.

Roll. Abr. 249. An award to levy a fine is ffood: for though it is an act of the
that one shall ^^^^^^ J'^^ ^y the law and public justice of the kingdom it is not
surrender his }^ ^^ refused to any man ; but if the award be to command the
copyhold into justices to do it, this is no good award, for the parties in effect

pray

(E) Award, or Jinal Determination of the Arbitrators, ^97

pray leave to agree from the king himself, which is quite different the hands of

from the nature of a command. t^° o^ f"^ '^-

nants ot a ma-
nor, who shall present it, is good. Roll. Abr. 247.

An award to pay so much apud domuni J. S. good ; for he is I^oH- Abr. 249-

not bound to pay it in the house, but as near as he can to it ; ^^^' q^^'^^'

or it shall be intended a common inn, and if the party will not 2 Bulstr. 39. '

let him pay there, it has been said that the endeavour is suffi- Freem. 205.

cient, for they cannot award any thing that will make the party ^ Lev. 153.
a trespasser.

II If an arbitrator on a reference of differences between a lessee Alderv.SavIll,

and a neighbouring land-owner, award that the lessee shall do ^ 1 aunt. 454.
an act for the benefit of the neighbour, which would be waste on
the estate of the lessor, this award is bad.

And no court will enforce an award which directs a party to 1 Swanst. R.
do an act which is criminal. |1

An award that one of the parties should discharge the other Jones, 431.

of a bond in which both were bound to a stranger, is a arood V'?'»„t'^'

1P-1111- 1T1 1 1 -1 (a) And now

award ; tor it shall be intended that the money was to be paid at by stat. 4 Ann.

a day to come ; and therefore he might then tender it and acquit c. 16. § 12.
the other ; and if the day of payment be past, he may pay the payment after
penalty, and compel the other to give a release, in a court of Lfnchfa'l^nd
equity, (a) interest is

good.

An award that one of the parties shall discharge the other from 1 Mod. R. 9.
his undertaking to pay a debt to a third person, a good award ; Beckett and
for by the award he is set in the place of the other person, and '■^y^^"^-
the creditor upon payment is compellable in equity to give a
release.

An award the tenth day of the term to stay the suit, and judg- Yelv. 55.
ment given in the action that term ; in an action for nonper- Jwf^^,^"
formance, and noii assumpsit pleaded, it was moved in arrest, *
that every judgment given was as of the first day of the term,
and so the award to stay the suit then was altogether impossible ;
but it was holden that though this might have been a good
objection upon a special demurrer, where it is shewn for cause,
yet now the court must give judgment on this record only ; and
it doth not appear on this record when judgment was given on
the other.

If A. and B. submit to the award of J. S., and he awards that 2 Vent. 249^
A. shall pay to B. 301. within two months next following, and
that upon payment thereof they shall give mutual releases to one
another, and within the said two months B. dies, the money shall
be paid to his executor, who thereupon must release, for the
award creates a duty.

5. It must heJinaL

An award may be good for part only, but then it must be final 19 H. 6. ^q.
as to that part. 8. E. 4. 10.

An award that all suits shall cease is a final award {h) ; so an (5) 2 Mod. 227.
award that one of the parties shall not sue an obligation (c) ; for £q. Cas. Abr.*

this

S98

ARBITRAMENT AND AWARD.

48. Barnes,.';6. this amounts to an extinguishment of the debt. An award that
Lev. 58. S P. ^ gyjj. jj^ Chancery shall be dismissed, a final award {d) ; so if
1024. That all the arbitrator award a retraxit {e) ; an award that one shall not
manner of prosecute nor proceed in such a term, seems to be good (g) ; but
proceedings an award that one of the parties shall be nonsuit is not good,
(ifany)de- because the party may begin again (h); so that each party shall
faw shaU be" discontinue their actions which they have against each other (0 ;
no farther pro- for this is not a final determination.]
secuted,

holden not to be final: but see 6 Mod. 34. cotiL] (c) Roll. Abr. 54. (rf) Salk. 75. pi. 17.
6 Mod. 231. llSee Pearse v. Pearse, 9 Barn. & C. 484. acc.\\ (e) 5 H. 7. 22. (g) Cro. Jac.
525. (A) 19 H. 6. 36. Roll. Abr. 540. 6 Mod. 282. S. P. admitted. (?) 5 H. 7. 22. [An
award " that each of the parties should pay his own charges at law, and that the defendant
" pay the plaintiff 5*. for his making the first breach," was holden to be good; for it must
necessarily be presumed that the suits were to cease, and the 5s. to be paid by the defendant
to be taken as a discharge. Hawkins v. Coclough, 1 Burr. 274.]

Blanchard v. ||But in a late case, an award that certain actions should be

V. Lilly, 9 East discontinued, and that each party should pay their own costs,
was held final and good, as it in effect amounted to an award of
a stei processus.

And where an action of covenant, together with all matters in
difference between the plaintiff and defendant, was referred to an
arbitrator, and the costs were to abide the event, and the arbi-
trator awarded that the plaintiff had no claim against the
defendant, on account of the alleged breaches of covenant, or on
any other account, this award was held final, although it did
not expressly put an end to the suit.
Dickins v. Jar- And an award that " nothing was due to the plaintiff," was
vis, 5 Barn. & held final, as intending that the plaintiflf had no right to recover
C. 528.; and in the action. |1
see Havliar v.

R. 497.

Jackson v.

Yabley,

5 Barn. & Aid.

848.

Ellis, 6 Bing.
2 Atk. 501.

Sid. 59. Cro.
Jac. 584. Hob.
218. Palm.
110. 146.
Price V. Hollis,
1 Maule & S.
105.

Selsby v. Rus-
6el,Comb.456.

225.

[If an award direct that debts due from the parties jointly shall
he paid by them in moieties, and then mentions three such debts
only, the court will not presume that there are more.]

A conditional award not good, because not final to determine
matters in difference ; the same law where any thing is referred
to the arbitrator's future judgment or exposition.

II But in a late case, where a question of law as to the construc-
tion of a statute was left to the determination of an arbitrator,
and he gave his opinion in favour of one party, but at the same
time recommended that the printed statute should be compared
with the parliament roll before the matter was settled, under a
doubt that the statute was misprinted, this determination was
heldfinal.il

An award " that if the plaintiff, on account prove certain
" articles against the defendant then he shall pay so much as the
" plaintiff was damnified thereby," is not final. So also, " that
" if the defendant make out upon oath before a judge, any dis-
" bursements made on account of the plaintiff, that the plaintiff
" shall pay them ; but in case the defendant do not prove these
" matters within a certain time limited, then the parties shall
" give general releases ;" this is not final.

(E) Award, or jfinal Determination of the Arbitrators, ^99

II So also, where the award was that the defendant should pay to Pedley v.God-
the plaintiff a certain sum, unless within a certain time (which ^^'^' '^ Term
extended beyond the time for making the award), the defendant see^Storke v.
exonerated himself by affidavit from certain receipts of money, De Smeth,
in which case they were to be allowed out of the sum to be paid Willes R. 66.
by him to the plaintiff, this award was held conditional and in-
conclusive, and the court refused to enforce it by attachment. ||

[But an award of a thing to be done at a future day, if such (a) Palm. no.
thing must then be absolutely done, is final; as to pay money per Bod-
at three several days to come, (a) So to give a note or a bond /-Arnootu
for the payment of money at a future day. (6)] Gamett,

2 Stra. i08'2.

If the arbitrators award general releases within four days after popjj, j^ jg^

the award, and if in ten days after the releases so made the party Sherry and

dislike the award, upon payment of ten shillings the award shall Richardson,

be discharged : here the award is good, and the proviso to make ^ Roll. R. 189.

/» •' 1 • Grove snci

void the award after such releases is altogether void and re- Saunders Kyd

pugnant; for if the obligation be once forfeited by nonperform- i46.
ance of the award, it can never be discharged by the award itself;
but if the arbitrators award general releases within four days after
the award, and if ten days after the award made the parties dis-
like the award, S^-c. the award shall be void : this award is not
good, because not final and decisive ; for the parties may dislike
the award within the four days.

If the arbitrators award that A. shall beg jB.'s pardon in such Salk. 71. pi. 5.
manner and such place as B. shall appoint : as to this part the Glover and
award is void, for the arbitrators ought to have made a final j/fj"!';^ 10
determination of the matter themselves, and not to have left the That an award
manner and place of begging pardon, which in this kind of satis- that one of the

taction makes the most considerable part, to the judgment of B. P"''^'^^. ^^^^

^ •' ° make his ac-

knowledgment before the mayor of C. is good.

When the arbitrators award a thing not submitted, with a Palm. i46.
reservation to themselves of a future power of judging of the Cro. Jac. 315.
matter, and they award a thing within the submission ; this is
good for the thing within the submission, for as to that it is final,
and void for the residue.

If they arbitrate that all controversies shall cease, except that Cro. Jac. 277.
concerning one bond, this is final ; for as to the bond they arbi- ^^^'
trate that it shall continue in force.

[An award that A. should execute a covenant to indemnify B. Philips v.
against a qui tarn action begun at A^% instance in the name of Knightley,
another person, was hoi den to be good, for it was not in the ^ ^^^' ^^'^*
power of the arbitrators to order the suit to cease, the poor 151 jg^ \^J
being equally interested in it with the informer ; and in this case 463. S. C.
too the informer was a third person, (c) Fitzg. s-i. les.

270. (c) Ac-
cording to the report by Fitzgib. the informer was the plaintiff in the present action. ||It
appears that Page J. dissented from this decision, and all the justices agreed, that if the suit
could have been released or otherwise dischai'ged, the award would have been bad. 1 1 East
190. n. (a).ll '

It is enacted by statute 23 G. 3. c. 58. " that for every piece 23G.3. c.58.
" of vellum or parchment, or sheet or piece of paper upon which

« shall

300

ARBITRAMENT AND AWARD.

Brown v. Vaw-
ser, 4 East,
584.

Goodson V.
Forbes,

6 Taunt. 171.
S.C. 1 Marsh.
S25.

Preston v.
Eastwood,

7 Term R. 95.

" shall be engrossed, written, or printed any award, there shall
" be charged a stamp duty of five shillings."]

II An award, though under seal, is not a deed unless delivered
by the arbitrator as such, and therefore if only delivered as an
award, it requires only an award stamp.

However by the last general stamp-act, 55 G. 3. c. 184., the
former stamps are repealed, and the same stamp is required upon
all awards as upon deeds not requiring an ad valorem stamp.
This stamp is 1/. 155.

Where several parties to a reference have a community of
interest in the subject matter referred (as in the case of the seve-
ral underwriters on the same policy agreeing to refer the claims
of the assured) the agreement of reference and the award, each
only require one stamp.

The court will not set aside an award for a defective stamp,
if no proceedings are taken to enforce it by attachment, for it
may be rendered good by affixing a proper stamp, on payment
of the penalty. ||

(F) The Construction and Effect of the Award, and
herein of the Performance thereof.

sBrownl. 311,
Salk. 69. pi. 1.

2 Vent. 249.
Roll. Abr. 257.
Cro. Jac. 277.
Yelv. 203.

Cro. Jac. 423.
Roll. Abr. 250,
like case.

21 H. 7.
Semb.

28.

Moor, 3. Cro.
Eliz.211. con^.
«Cro. Jac. 425.

A N award, as has been said, is to receive a liberal construc-
tion, and to be governed by the intent of the arbitrators,
where no inconvenience will ensue ; therefore, if the arbitrators
award a thing to be done, without saying within what time, the
party shall have reasonable time, because they must intend all
things necessary to the doing the thing they award.

If the award be to pay money to J. S., if he dies the money
shall be paid to his executors ; a submission of all actions, and an
award of a release of all actions, except a bond, this is an award
that the bond shall stand.

An award that one shall enjoy such a house, and pay the rent,
else the award for enjoying the house to be void, is a good
award; for the award is absolute, unless upon his own fault;
and the thing is reserved to the future judgment of the arbi-
trators.

If a battery is submitted, and the award is, that one shall
release, and the other pay him 10/., the release must only be
understood of the battery, and must be first performed before
the 10/. shall be paid.

If an award be, that one shall make a lease to the other, ren-
dei'ing rent, and the lease be made, but the rent not paid, the
obligation is not forfeited, for the award did not reach to the
payment of the rent, which must be recovered by distress or
action of debt ; but if the award had been that he should pay
the rents at such set times, the obligation would have been for-
feited if they had not been paid ; and in such case it is a sum in
gross, and payable without demand, for the party must offer it to
save his obligation.

^ It

(F) The Construction and Effect of the Axvardy ^c, SUS

It is an established rule, that an award may be good in part, 8 Co, 98. Sand,
though void as to other parts of it; and that the party is obliged |^^- Roll- Rep.
to perform that which is well awarded, and excused as to that o^t' oot r^ii
only which is void : but it an award is good as to one party, and Abr. 256. Lev,
void as to what is awarded to the other party, the award is void 58. Leon. 72.
in the whole. Roll. Abr. 244.

Hob. 218.
2 Lev. 3. 2 Lev. 415, Cro, Eliz, 758, JlFox v. Smith, 2 Wils. 267, Addison v. Grey,
2 Wils. 293.; and see 2 Saund. 293. n. 1. Simmonds v. Swayne, 1 Taunt. 549.|| [A mistake
in matter of calculation, or an unintentional omission, which turns the balance to the other
side than that on which it ought to fall, will not vitiate an award in toto. Ambl. 245.]

II For then the one party cannot have the advantage intended 2 Saund. 29s.
for him as a consideration for what he was to do on his part.

And if it appears that the arbitrator has omitted to award Ingram v.
upon some matter in difference, this will avoid the whole award; Milnes, 8 East,,
though the mere awarding on something beyond the submission
will only render it void for that matter.

And if an entire sum is awarded, as to part of which the Auriol v.
arbitrator has clearly exceeded his authority, the courts cannot ^^^i*^"' ^ J"^^'
apportion the sum, but the award is void in toto. || seeBonner v.

Charlton, 5 East, 144. George v. Lousley, 8 East, 13..

If the arbitrators award one thing on the one part, and the 36 H. 6. 12.
time expires before they award any thing on the other part, this ^ ^' ^°*
is altogether void, and contrary to their authority, because it doth
not finally determine the things contained in the submission
equally on both parts.

If it be provided by the submission that the award should be sE. 4. 11.21.
notified or delivered to the parties in writing (a), it is no award j ^p^*f\
till notified or delivered, because it is not according to the power )^^ ^^ ^^^^ ^
in the submission. provision, the

parties must take notice of it at their peril ; and if they do not the act awarded, it is a for-
feiture of their obligation, 8 E, 4, 18. 21. 1 H. 7. 5. 8 Co. 92. b. Vide Keilw, 175. cont^
[But this was not the point on which the judgment turned.]

If several persons of the one part, and several of the other Dyer, 218.
part, submit themselves to arbitrament, provided the arbitrator
deliver the award to the parties, or one of them, he is not ob-
liged to deliver the award to one of each party, but it is sufficient
to deliver it to any of the said parties.

But if two on the one part, and one of the other, submit to an 5 Co. iot.

award, ita quod arbitriumfiat et deliberetur utrique partium pradict., ^^°°''' ^t^'
,, , ,. f I 1 1 ■'ill Hungate s

the delivery or the award to one on the one part, and to the other case. Cro-

of the other part, is not sufficient ; for each party is each entire Eliz. 885»

party : for each, by nonperformance, incurs the penalty, and

each provides, in order to his performance, that it should be made

known to him.

If two men submit to an award, so that it be paratum deliberari Hard. 399'.
partibus such a day, it need not be averred that it was parafum ^'"^* ^^* •^*^'
delibei-ari, Src at the day, for the publication of the award itself
is sufficient.

If the submission be general, that the award shall be delivered Dyer, 21 8.
before such a day, it may as well be delivered by word as by deed ; ^•»lk.75.pl.i5.
and therefore no7i deliberavit in scriptis, in such case, no good plea.

Debt

302 ARBITRAMENT AND AWARD.

2 Keb. 462. Debt upon an award by word only, is within the statute of

21 Jac. I. c. 16. of limitations, and must be sued within six
years : it is otherwise of an award by specialty.
„ h If there be an obligation to stand to an award, each ought to

If a sum of perform it on his own part, at the peril of his obligation,
money be awarded one of the parties, and that they both shall give mutual releases, if he who
is to receive the money refuses it ; yet, upon a tender and refusal, he is as much obliged to
sign a release as if he actually received it. Salk. 75.

4 H. 6. 1. a. If money be awarded and not paid, the party may either have

20 H. 6. 12. b. j^jg gj.gj. action, or action of debt; for if there be payment, the
49 E. 3. 3. a. ^""^^ wrong was determined ; but otherwise he cannot plead the
Roll. Abr. 267. award as a determination and bar of the wrong ; for since the
VideSa\k.69. award of arbitrators doth not bind any man's property, as judg-
F" h^if?^^ ments at law do, it is fit the party, when he pleads it in bar,
and qiusre. should shew an execution at the time appointed.

As to the performance of the award, if there be no time
Where the limited, it is to be performed in a convenient time,
party shall be excused by the act of God, vide 21 E. 4. 70. Where the thing awarded to be
done, becomes impossible by the act of a stranger, vide 2 Mod. 27, 28.

8 E. 4. 10. Though an award cannot be made part at one time and part

at another, yet it may be performed part at one time and part at

another ; for the nature of the thing may require performance at

different times and places.

2 Leon. no. An award for one party to deliver a release or bond to the

181. In debt other, if that one party delivers it to ^., who delivers it to ^.,

on an obliga- ^j^^ tenders it to the other party who refuses, this is a good
tion lor per- ^ ™ , ^ '' "

formin'' an performance of the award.

award, by which award the parties were to give mutual releases, the defendant pleaded that
he made a release to the plaintiff, and delivered it to J. S. for his use ; and this was held a
good performance of the award, for the defendant could not plead no7i est factum, neither
could he countermand it ; and as the arbitrators had not appointed any place where the re-
leases should be delivered, if the plaintiff should absent himself, it would be very inconvenient.
Cro. Eliz. 54.

Roll. Rep. 7 8. If the submission be of a Chancery suit, and the arbitrators
2 Bulstr. 93 to award that the suit shall stay, and that one be quit against the
96. Cro. Jac. other for all matters in the bill, it is sufficient performance to say
vT s f "^^^A^^ that the other stetit quietus, though he did not procure an actual
by consent at discharge; but where one by deed is obliged to acquit another of
nisi prim to such a debt, or such a suit, it is not sufficient to save him harm-
three of the less, but he must procure an actual discharge; but the award here
f'ore'the ^"d ^^^"g quod staret quietus, means no more than that the party
was made one should be acquitted by force of the award itself, and not that
of the parties another discharge should be procured ; and in this case if a new
served the ar- \y([\ [jg exhibited, yet that is no disturbance to incur a forfeiture
a mbp(B7ia out without process issuing out, as the subpoena, for till process the
of chancery. P^rty is not actually molested.

This was holden to be a breach of the rule, and an attachment nisi was granted. Salk. 73.
Under a rule of court to abide by an award, and not to bring any bill in equity, an award is
made, that A. shall pay to B. 20/. : this award A. moves the court to set aside ; but the court
confirming it, he pays the money, and then files a bill : this is a high contempt in A. his coun-
sel, and attorney. Rex v. James Wheeler, 3 Burr. 1256.]

2 Bulstr, 96. But if a man submits a rent-charge to arbitration, and the

arbitrator

(G) Of the ^leadings in Awards, 303

arbitrator award quod staret quietus of the rent, he who hath the If t^»e award is
rent ought to release the same to the other, in performance of this 5"?^^ staret ac-
award, for to be quit of the rent supposes the demand not in being, an^nform^'"
ation, this is not good, unless it be actually released, because the king may prosecute it
2 Bulstr. 96. ,

If an award be that the plaintiff shall not prosecute or pro- Cro. Jac. 525.
ceed in a suit the same term, the entry of a continuance is no o^p ^p* ^°^*
breach of this award, for otherwise the party can never after- g^arj be not
wards go on in this action. to continue

the suit, if the party continue it by attorney, this is a breach ; but if the attorney continue it
•without his knowledge, it is no breach. Cro. Jac. 525.

If an award order a defendant to re-assign to the plaintiff an [Ld. Raym.
estate in mortgage, he is bound to do so without request. 234.

An award that all suits shall cease between A. and B. does not 10 Mod. 204.
extend to suits between A. on the one side, and B. and C. or B. Roll. Abr. 246.
and his wife on the other, so that the prosecution of such a suit
is no breach of the award.

Where an award was that one should make a lease for years to Mo. 3. p. 8.
another rendering rent, and the lease was accordingly made, it was
holden that the arbitration-bond was not forfeited by the non-
payment of the rent, because the lessor had his proper remedies
for that by distress or debt ; but if the award had been that the
lessee should pay the rent, the bond had been forfeited. So if Stra. 905.
it be awarded that one shall enter into a bond for the payment ^ Barnard,
of money to another, the entering into the bond is a sufficient
performance of the award, nor will the nonpayment of the
money, according to the condition of such bond, be any breach
of the award.

Where the award orders a release to a time beyond the sub- Baker v. Re-
mission, a release to the time of the submission is a sufficient Chester, 1 Sid.
performance. ^fevelr""

6 Mod. 34.

A considerable number of years having elapsed since the Sweet v. Hole,
making of an award, is no objection to the party being called ^^' temp,
upon to perform it.]

An award is made to infeofF J. S. J. S. comes and desires 3 Bulstr. 65.
the party to infeofF./. M. and him to the use of himself; (and it
is done;) this is a good performance of the award, for though the
construction of the sense of the award is to be taken on the
express words, yet what is a performance of the award is to be
taken according to the intent of the arbitrators.

A man cannot plead generally the award performed, but Moor, 3. pi. 9.
he ought to set forth the award, and therein how he hath per-
formed it.

(G) Of the Pleadings in Awards.

1 F the arbitrators award money to be paid at a day to come, this 49 E. 3. 3.

is a good plea in bar in an action of trespass before the day, Roll. Abr. 267.
because it is debitiwi i7i prcesentif though solvcndum iujuticro; and -^ofe; There

304 ARBITRAMENT AND AWARD.

is a difFerencG if a party might have an action of trespass before the day, and

between an recover, he mifjlit have an action of debt after the day, and so a
accord witn ' o •' '

satisfaction double satisfaction for the same thing,
and an award ;

for in an accord a man must plead present satisfaction, and it is no plea in bar to plead an
accord with satisfaction at a day to come, for in all personal injuries the law gives damages as
an equivalent ; and when the party acccepts of an equivalent, there is no injury or cause of
complaint, and therefore a present satisfaction is a good plea; but where the wrong-doer pro-
mises a future satisfaction, the injury continues till satisfaction is made, and consequently there
is a cause of complaint in being, and if the trespass were now barred by this plea, he could
have no remedy for the future satisfaction, for that supposes the injury still to have continu-
ance ; but where persons submit to arbitration, the arbitrators are judges of the injury, and if
they award money payable at a day to come, that is a good award, and may be a good plea in
bar to an action of trespass brought in the mean time, because this thereby becomes an imme-
diate debt attainable by law. 5 E. 4, 7. Plowd. 5. b.

Roll. Abr. 266. It was formerly holden, that an award of a release, a horse,

Salk.76.pl. 19. a, quart of wine, to enter into an obligation, or any other collateral

matter in satisfaction, without performance, was no good plea in

bar ; for were it a good plea in bar, the plaintiff could have no

remedy afterwards to compel the party to do the thing awarded,

for by the bar the trespass would be nullified.

Carth "78 be- "^"^ ^^ ^^^ been since holden, in an action on the case upon a

tween Free- special promise made by the defendant to deliver a parcel of

man and Barn- hops to the plaintiff on such a day and place, on a certain price

ard adjudged, gg^-eed on, ^c. to which the defendant pleaded in bar, that after

Salk 69 d1 i! *^^ promise made, both he and the plaintiff referred all matters,

S.C.Ld.Raym. and that the arbitrators awarded that the defendant should re-

247. S. C. and lease the plaintiff, and that he should release the defendant of

the difFerence g]i actions and demands whatsoever : and allesfed, that from the

tnprp taken - - ^ o ^ ^

that by award- ^^"^^ ^^ ^^^^ award hitherto, he was always ready, and yet is, to
ing a coUa- release the plaintiff according to the award, ^r. And upon de-
teral thing to murrer to this plea, after several debates, it was adjudged, that
be done, a new ^.j^jg award was no bar to the action, because nothing was awarded
and the old ' ^^^ '^^^V niutual releases from each other, so that the award
discharged, itself is no bar, but the thing awarded, when executed, would be
and then it a bar ; and a difference was taken where any thing is awarded
may be plead- j^j satisfaction, there the award itself is a bar before it is per-
thou^h not ex- fornied ; but where nothing is awarded but releases on both sides,
ecuted; secus there, when the award is executed, the release will likewise be a
if a release bar ; and the court held, that the defendant may bring his action
onlybeaward- against the plaintiff for not releasing; according to the award,
ated no new ^"'^ therein ought to recover all his damages and costs lost m
duty. Vide the action against him.

Carth. 188. IJAnd accordingly in a late case it was held, that a submission to arbitration and
an award made, was a good plea where the parties have mutual remedies. Gascoyne v.
Edwards, 1 Young. & J. 19. See 1 Will.Saund. 524. note (s).

Keilw. 121. The above cases must be understood where the action was

Roil. Abr. 267. brought before the time for performing the award was expired;
49^R\^ml°^' ^^^ ^^ award be to pay money at a day to come, and the
Saik.'eg. pl.i. nioney be not paid at the day, and afterwards an action of tres-
Ld.Ruym.247. pass be brought, this is no good plea in bar, for no man can
Carth. 578. plead this in bar without shewing he has paid the money ; for it
is against natural justice to make one default and wrong an ex-
cuse for another; but if the party tender it at the day, and the

other

(G) Of the Pleaditigs in Awards, 305

other refuse it, then it is a good plea in bar, it being his own
fault, and he hath still a remedy for the money.

An award which does not extend to the whole of the thing
demanded, is not a good plea to an action on the demand. Ba "^'ah

Clapcott V. Davy, l Ld. Raym. 612.

To an action of trespass a defendant may sometimes plead an (a) 7 H. 4. 31.
award made on submission by the plaintiff and a stranger (a) : so ^- ^'■°- 44. b.
he may plead (6), that the trespass complained of was committed f^-^j^'u y
by the defendant and another, and that the matter was afterwards sonv.Arriskin
submitted to arbitration by the plaintiff, the defendant, and the Com. Rep.
other trespasser. ^^s.

To a plea of an award, the plaintifFmay reply that the subject 4TermR. i46.
matter of his action was not included in the reference, though P^e Mitchell
the terms of such reference were general, of all matters in differ- Y* ^^^^^^yj
ence, and the cause of action was in point of fact subsisting at Simmonds v
the time of the reference.] Swaine,

1 Taunt. 549.11

If in an action of debt upon an award, the plaintiff declares Leon. 72. That
that the arbitrators did make an award that the defendant should plaintiff
pay unto the plaintiff 1 0/., this is a good declaration, though that i?iicr^ara
nothing is shewn to have been awarded on the other side ; for it it was award-
is sufficient for the plaintiff to set forth that part of the award ed. Lit. Rep.
which entitles him to his action: and if the defendant will im- ^^- ^'f- ^^^-
peach the award for any thing, he must shew it specially on his rin"an luftion
own part. on the award

itself it is necessary to set out in the declaration only so much as is sufficient to support the
plaintiff's case : but in an action of debt on the arbitration bond, the whole demand must be
Bet out at length, though Holi C. J. thought, that even in this case the omission of that which
k void would not be material. 1 Burr. 278. I Salk. 72. There is this difference again
between actions on the award itself, and actions on the arbitration bond : in the former case
the plaintiff must state a mutual submission ; in the latter, it is unnecessary, for by oyer it
appears on the face of the condition, and the plea of nul agard fait admits it. 2 Stra. 923.1

In an action of debt upon a bond conditioned for the perform- Sand. 526.

ance of an award, the defendant pleaded that the arbitrators did ^^* ^"*^

make an award that the defendant should pay to the plaintiff the^cou*^ t

3100/., and should give to the plaintiff a general release, and would not give

pleaded that he had paid the money and given a release accord- judgment for

ingly, but did not shew what on the part of the plaintiff was ^^^ defendant,

awarded to be done; and the plaintiflf replied without shewing: ^j," i!i' •'''.\o>.
11 PI 1 • 1 • T • 11. I ° ifie piamtiii to

the other part of the award m his replication, and took issue that discontinue

the defendant had not paid the money ; and the defendant put in because they

an insufficient rejoinder, upon which the plaintiff demurred; ?PP'"phcndc(l

and per cur. the plaintiff cannot have judgment, because the trick in tt" *

award as set forth and agreed in pleading is void (c) ; but if the pleadinT, for

plaintiff would have helped himself, he ought to have shewn the which the

other part of the award before he had taken issue. chief justice

reprehended
Sanders, who excused himself by reason of the severity of the award. 2 Keb. 568. S. C,
11(c)) However, it does not seem clear that the award as set forth would now be held bad. See
Serjt. Williams's note on tiie subject, I Saund. 327. a. (5th edit.) and the cases there cited.!!

If in debt upon an obligation conditioned for the performance Yelv. i52.Cro.
of an award, the defendant pleads milium feoerunt arbitrium ; and Ji»c. 220. Sand.
Vol. I. X the

306

ARBITRAMENT AND AWARD.

102. S. P. ar- the pliftintiff replies, and shews the award, he must also shew the
guendo, vide breach, without which he hath no cause of action, for the obliga-
whe%itissaid tion is guided by the condition; and though the defendant can
that the plain- make no answer to the breach, yet it ought to appear to the court
tiff can assign that the plaintiff hath cause of action.
only one

breach. ||The doctrine in the text is recognised by HoU C. J. in 1 Salk. 138. and in Shelly v.
Wright, SVilles R. 12. The want of assigning a breach in case of an award is matter of sub-
stance, and bad on general demurrer. Hob.198.233. So if a bad breach be assigned, Com. Dig.
Pleader (F), 14. and not aided after verdict, Hob. 198. Yelv. ^55. ; and yet the breach when
assigned is not issuable or traversable, nor can the defendant give any answer to it ; for the
plea, as between the parties, has an issue before, and the breach is but an excrescency or
surplusage. Hob. 198. 2-3,3. Yelv. 153.; for any answer to tlie breach must necessarily admit
the existence of the award, and, consequently, be a departure from the plea. Sir T. Ray. 94.

1 Mod. 227. 1 Lev. 245. Though Serjt. Williams, 1 Saund. 103. note (l), lays it down that
on this issue of md tiel agard the defendant may shew the award to be void, yet the better
opinion seems to be that he cannot. 1 Salk. 72. 1 Will. Saund. 527. b. notis. If the replica-
tion set out the whole award and it be void in law, the defendant should demur; if it set out
only a part, omitting that which makes the award void, the defendant should set out the
whole in his rejoinder and demur. Fisher v. Pimbley, 1 1 East, 188. ||

Sid. 290. But if in debt upon bond to perform an award, and oyer of the

d f V t condition, the defendant pleads non submisit, the plaintiff need

pleads a re- "^^ assign a breach (a), for the defendant puts the whole stress

lease. Brownl, of his cause upon a matter antecedent to the alleging of a breach ;

90. Yelv. 79. for, if there be no submission, there could be no award, and

consequently no breach of it.

If in debt upon an obligation conditioned for the performance

of an award, the defendant shews that the arbitrators did make

an award, that the defendant before such a day should pay to

judges againstj the plaintiff 100/.; or otherwise should procure one A.^ being a

two, who held stranger, to be bound to the plaintiff for the payment of 12/. per

tiff'should ^^"' ^""""™ to the plaintiff for his life ; and the defendant pleads that

have shewn ^^^ ^^^^ performed the said award, and the plaintiff replies, that

the whole the defendant hath not paid the said 100/. without saying, nor

award, and hath procured A. S^-c.^ yet this is a good replication ; for the

thereupon the ^ward as to that part is merely void, and therefore the plaintiff
law would - I . I r /*» \

have adjudged need not take notice thereof. (0)

one part void, and not to be done. Leon, 140. S. C* {b) So if the award be, that the de-
fendant, together with a stranger, shall enter into a bond, in the assignment of a breach the
Elaintiffmust not say that the defendant and stranger did not enter into a bond, for though
oth did not, yet the defendant alone might enter into bond. Godb. 165. [If an award be
good in part, and bad in part, it is sufficient to assign a breach in that part which is good.

2 Wils. 295.]

* It would have been better if the plaintiff had shewn that neither the one thmg nor the
other had been done.

2 Wils.267. [Where an award was that the defendant should pay to the

29.3. Addison P^^^"^^^ ^^^' ^Os., and all such costs, charges, and expenses as

T. Gray. ^^^ plaintiff had been put unto in a cause then depending

between them, and that thereupon they should execute mutual

releases, it was holden that the breach was properly assigned iii

the nonpayment of the 16/. IO5. only; for that the bond wa$

forfeited by the breach of any one part of the award ; and the

recovery in this action would be a bar to any future action

brought on the bond for the costs, 8fc. when ascertained.]

2 Brownl. 137. In an action of debt upon an award, it is not necessary fot

th£

Leon. .304.'
Owen, 15.3.
S. C. adjudged
by three

(G) Of ihe Pleadings in Awards. * 307

the plaintiff in his declaration to lay time or place where the (a) But where

award or submission were made [a) ; but if the defendant denies an award is

either, the plaintiff may reply, that the award or submission was pleaded in bar

1 . '^u 1 •' '^ "^ of a trespass,

made at such a place. ^ pl^^^ ^^^t

belaid where the submission was made. Cro. Eliz. 66. The plaintifFneed not set forth the
profert in curia, because it is no deed. Stile, 459. IJThe execution of the submission by all
parties must be proved. Ferrer v. Oven, 7 Barn.& C. 427. |1

[To a plea of nul agard the plaintiff replied that an award was Bissex v. Bis-
made after the execution of the bond, and before the exhibiting ^^'''j ' ^"'■*''
of his bill (to wit) on, S^-c. in the condition mentioned. It was
adjudged on a special demurrer, that the time of making the
award is positively enough alleged under the scilicet, and that
the defendant might have taken issue upon it.

In debt on an award to pay so much money and to execute Bell v. Simp-
mutual releases to the date of the arbitration-bond, judgment son, 2Wils.io.
will not be arrested, b: cause it does not appear upon the record
that there was any arbitration-bond, though this perhaps may be
a good objection at th.e trial.

In debt upon bond conditioned to perform the award of J. S., Henderson v.
so as it be made in writing under his hand and seal, Sfc, it is not Williamson,
sufficient for the plaintiff in his replication to state that J. S.
made his award in writing, and to set it out ; but he must shew
that it was under his hand and seal, pursuant to the terms of
the submission.]

If there be a submission to the award of J.S., so that the said Cro. Jac.577.
award be made under his hand and seal, on or before the 5th By two judges
day of September following, ready to be delivered at the shop of "p.""*.' *'}^
J. N. in the Excha7igef London, and in an action of debt upon ^j^^ ^^^^^ ^^
an award made thereupon, the plaintiff declares that the said publication
J. S., under his hand and seal, the fourth day of September there, and
following, ajmd Castrum Eborum, did make an award ad tunc et allegation
ibidem par at. to be delivered at the shop of the said J. N. in the ,.p3j ^^ ^,g
Exchange, London ,• tiiis is no good declaration, for the parties delivered at
are not bound to take cognisance of the delivery elsewhere than the said shop

at the place appointed. •" London,

•^ * ^ was well

enough ; but it was adjourned. 2 Roll. R. 193. S. C. adjourned. 3 Mod. 331. S. C. cited as if
adjudged. Vide 2 Lev. 6S. Ld. Raym. 533.

If in debt upon an obligation conditioned for the performance Sid. 370.
of an award, so as, Sfc. the defendant pleads no award made,
and the plaintiff replies, that ante exhihitionem billcE, scilicet the
24th of June, (which was a day within the submission,) the arbi-
trators made an award, Sj-c. and the defendant demurs generally,
the plaintiff shall have judgment; for though the plaintiff ought
to have replied, that the arbitrators made their award before the
day limited to them, yet this is form only, and helped by a
general demurrer.

But no action will lie upon the arbitration-bond, if it appear [Brown v.
that the award was made after the time limited in the bond, Goodman, E.
though such time were enlarged by the mutual consent of the 3 TermR.
parties. 592 n.]

U Unless the time be extended by an instrument under seal. Greigv.

X 2 Por

308 ARBITRAMENT AND AWARD.

Talbot, For where a bond was conditioned for performance of an award,

18^"^°' * ^ ^^ ^^ made before the 1 st of February, and by a deed-poll under
seal, the parties gave further time to the arbitrators to make
their award until the 1st of March, and the award was made
before the latter day, it was held on demurrer, that an action
was maintainable on the bond for nonperformance of this award,
the terms of the deed-poll being a new defeasance to the bond,
substituted for that in the bond itself. In Brcnsm v. Goodman,
it did not appear that the new agreement was by deed. ||
3 Mod. 330. If in debt upon a bond conditioned for the performance of

1 1 Mod. 170. an award, so as it be made, S^c. and ready to be delivered to the

12 Mod. 234. parties, or to such of them as shall desire the same ; the defend-
317. Ld. gjjj. pleads nullum fecerunt arhitrium, and the plaintiff replies,
247. 5Z3. 989. *"^ ^^'^ forth the award, and shews a breach, but doth not say
Lutw. 524. that it was ready to be delivered to the defendant, yet this is a
But for this, good replication ; for when the award is made, it is ready to be
mde letter (F), delivered to the parties, or to such of them as desire it, so that it

* must be desired ; and if denied, the party may plead that matter

specially.
2 Vent. 242. If in debt upon an obligation conditioned for the performance

Harson and of an evvard in writing, or by word of mouth, the defendant
Liversey. pleads no award made, and the plaintiff replies, that at the time

of the bond and award he had an action against the defendant
(fl) But if the for scandalous words, and that the arbitrator ore tenus did declare
award had and publish his award in manner following, viz., that the
been m writ- defendant should pay to the plaintiff twelve sniirieas, and all such
form of ex- money as he had expended circa prosecutimiem placitat. prccd. Sfc.
pression.ithad this is a good award, and well set forth, although the award
not been doth not mention any suit before ; for he that sets forth a parol-

|°° ^ A^' ^ward is not tied to the very words («), but it is sufficient to
per curiam. shew the effect and substance of what was awarded by word of

mouth.
Leev.Elkin, [An award was that the defendant should pay to the plaintiff
Lutw. 545. 21/^ Qj^ Qj. before the 7th day of May, and the breach assigned in
that the defendant did not pay the said 11/. secundum formam et
effectum arhitrii prcEdicti : and the court held it to be well enough,
though they said that it would have been more correct to have
assigned the breach in the very words of the award.]
Moor, 3. pi. 9. A man cannot plead generally the award performed; but he
(6) But if an ought to set forth the award (Z>), and shew how he hath per-
awardbeto forced it.
pay the rent

mentioned in such an indenture, the defendant in pleading performance need not set forth the
indenture, but refer generally to it. 1 Vent. 87. But if it be to be paid in such manner and
at such times as is expressed in the indenture, then it must be set forth at large. Vent. 87. So
if an award be to pay money given by will. Vent. 87.

8 Co. 82. In pleading a countermand to a submission to arbitration, it

need not be alleged that the party gave notice to the arbitrators,
for without that it is no countermand; and therefore, if no
notice be given, issue may be joined upon the point quod non
raxH:avit.

(G) Of the Pleadings in Awards, 309

If the submission be by word, though the award be by deed, Co. Lit. 295.
the party may wage his law (a) ; for though a deed cannot be 2 Sand. 6.5.
dissolved without deed, yet a verbal contract may be dissolved y^ ^"'^ there-
by word only ; and this in its original is a verbal contract. ^^^^ ^^ ^j^^j.

will not lie against the administrator, whose intestate was party to such an award. Cro.
Eliz. 600.

If in debt on a bond for performance of an award, the de- Salk. 72. pi. 9 •
fendant pleads no award, and the plaintiff sets forth an award ^^"•\'""^^^'
with a prqfert in cur. and the defendant craves oijer, and then poreland and
demurs for variance between the award set out in the replication Marygold ad-
and the oyer^ and the variances appear material, the defendant judged,
must have judgment; otherwise, if the variance had been as to y^ °^"" ^^^'
those parts in which the award was void ; and though in debt on videh\t Reo,
an award, the plaintiff need not set forth more than makes for 315. Burr,
him (6), yet it is otherwise in debt on a bond, for there the 278. liSee
plaintiff must reply the whole award; and if such replication be 2 Will. Saund.
without a. prqfert, the defendant may reply mil tiel agard. [c] ,^-. y^^^^ g^ji^

459., where it is said, that the plaintiff need not set forth a profert thereof tn curia, because it
is no deed. But it is the safest way.

If an award be made, that certain buildings erected on a Salk.76.5pl 18.
wharf, which were a nuisance to the plaintiff, should be pulled fr'vl .{?''i
down within thirty-eight days from the date of the award, S^x. 044. Arnitt
and upon nul agard pleaded, the plaintiff sets forth an award, and Breanie.
but without date; yet this is well enough, for the dale shall be
computed from the making of the award, as a deed takes its
date from the delivery, though actually dated on another day.

An award may be pleaded to a bill to set aside the award, and [Mitf. Eq. pi.
open the account (c^) ; and it is not only good to the merits, but 209. (rf)2 Atk.
likewise to the discovery sought by the bill, {e) But if fraud or ?^v " ?\:
partiality are charged against the arbitrators, those charges must 544.
not only be denied by way of averment in the plea, but the plea
must be supported by an answer, shewing the arbitrators to have Cg) sAtk. 396.
been incorrupt and impartial, {g) ^^^'

A mere agreement to refer matters to arbitration, where no Kill v. Hollis-
actual reference has taken place, or is depending, will not oust ter, 1 Wils.
the jurisdiction of any court, either of law or equity. *^j* J^^.'^chcll

2 Vcs. jun. 129. 4 Bro. Ch. R. 31 1. S. C. Wellington v. M'Intosh, 2 Atk. 569. Vide Half-
hide V. Fenning, 2 Bro. Ch. R. 336. conlr. ||Thompson v. Charnock, 8 Term R. 159. accord. ;
and it seems no action can be maintained for refusing to nominate an arbitrator according to
such an agreement. Tattersall v. Grote, 2 Bos. Si. Pull. 131. And a court of equity will not
decree a specific performance of such an agreement. Price v. Williams, cited by Lord Eldon,
eVes. 818. The case of Half hide v. Kenning, suprh, has been much questioned by Lord
Loughborough in Mitchell v. Harris, 2 Ves.jun. 129., where his lordship over-ruled a similar
plea pleaded to a bill for discovery only, the bill in Halfhide v. Fennmg being for discovert/
and relief; and also by Lord Eldon in Street v. Rigby, 6 Ves. 81.5. And it seems that such a
plea is not now sustainable either to a bill for discovery, or for discovery and relief. In one
case, however, respecting the management of the Italian Opera House, the Court of Chancery
refused to interfere till the parties had proceeded to a reference, on the ground of the peculiar
nature of the subject, and the anxious provisions of the partnership deed for deciding all dif-
ferences by arbitration. Waters v. Taylor, 15 Ves, 10.||

X 3 [(H) In

310 ARBITRAMENT AND AWARD.

[(H) In what Cases the Performance of an Awardj
may be compelled by Attachment, and the Course
of Proceeding to be taken in order to obtain it.

T^HE submission to arbitration being made a rule of court, an
attachment is granted against the party refusing to perform
the award, as for a contempt of that court of which the sub-
mission is a rule.

Edcell V. II If an award finds a debt, but contains no order to pay it, there

Dallimore, jg jjq contempt in not paying the money, and an attachment will

3Bmg.634. „otbegranted.||

Rex V. Myers, The attachment in this case is only in nature of a civil execu-

1 Term R. tjon, and therefore cannot be executed on a Sunday.
266. "^

Walker V. Earl || And for the same reason, an attachment will not be granted

Grosvenor, against a peer or a member of the House of Commons, although

7 lerm R. j|^ consent that it should issue.

171. Catinur -^

V. Sir E. Knatchbull, id. 448.

Hopcraft v. The court will grant the attachment, though the party may be

1 Binc'^s'-s *^"' ^^ ^^^ jurisdiction, and the award and rule of court have been

served out of-the jurisdiction.il
P . But the attachment is so far criminal, that the motion for

ward"slra/^' ^*" Cannot be grounded on the affirmation of a Quaker.
441. llBut it seems now otherwise, since the attachment is regarded as civil process. Taylor
V. Scott, cited Cowp. 394. Willes R. 292. n. (b).l|

1 Keb. 130. The courts of law were for some lime rather scrupulous about
138. 559.^ interposing in this summary way in order to enforce obedience
SirT.Ravm. to awards; though the courts of equity, where the submission
35. 1.52. was under one of their rules, made no difficulty in doing it.

2 Keb. 22. And an attachment is not at this time what the party applying
645. I Chan. £qj, jj. jg entitled to ex debito jiisliticE^ but it is entirely in the
Hales V. Tay- discretion of the court whether to grant it or not ; and therefore
lor, 1 Stra. they have refused it where there hath been contrariety of evi-
695. Stock V. dence, or the case hath been a hard one, or the person against

De Smith, Cas. ^hom it hath been moved hath been a bankrupt, and incapable
temn. Hardw. r • ^i i i

106. Perry v. ^* P^y^g ^"6 money awarded.
Nicholson, 1 Burr. 278. 1 Cr. Pr. 272. (1st edit.)

Davila v. If one of the parties revoke the submission, or hinder the

1 S ^k ^'- ' arbitrators from proceeding in the award, the court will grant an

1.10. attachment, (a)

jl(a) But not unless the submission has been made a rule of court before the revocation, other-
wise there is no contempt. Milne v. Gratrix, 7 East, 608. ; and see 1 Bing. R. 88. 6 Bing.
443. ; but the party may have his action. 5 East, 266. 5 Barn. & A. 507.||
1 Bing. R. 410. II The courts will grant an attachment where the nonperform-
ance is either nonpayment of money or not executing any
collateral matter.
1 Bos. & Pull. So also for nonpayment of costs awarded, and even for not

paying the arbitrator the costs of the award.
Tidd's Prac. So also for not paying the share of the costs of the award to

**^" the other party who has paid the whole to the arbitrator.

(H) Compelling Performance hy Attachment', 311

^o also for commencing a suit in equity contrary to the 3 Burr. 1526.
award. ' l Marsh. GQ.

But if it be doubtful whether the award be good or not, the 2 Dow. & Ry.
court will not enforce it by attachment, but will leave the party ^^2-
to his action.

A bankrupt cannot be attached for a demand due on an Stra. 1152.
award before his bankruptcy, since it might be proved : and if
he has been attached, and afterwards becomes bankrupt, the
court will discharge him.

But if costs are awarded to be paid by him before his bank- 9 East, 318. ;
ruptcy, but not taxed till afterwards, the bankrupt is liable to be and see
attached for them, since they were not a debt proveable till ^Barn. &C.
taxation. ||

If the party dies, there is no remedy by attachment against Webster v.

his representatives, for the contempt dies with him. Bishop, 2 Vern.

And therefore the court will not stay proceedings in an action 444. Paterson

upon the submission bond, or upon the award, though the party 00^^°^^%

be in custody on the attachment. But they will not grant an 227. liWilles

attachment, unless under some very particular circumstances, R. 3i5.||

where an action hath been already commenced. And if the Stock v. De

defendant be taken in execution on a iudsment, the attachment p™ith, Cas.

•11 , J. , J J o » temp. Hardw.

Will be discharged. 2Qg jq^

Richardson v. Chancey, 1 Barnard. 386. ||BadIey v. Loveday, 1 Bos. &Pi.iil. 81.||

If exceptions are made to the award, though it be affirmed, an Morris v.

attachment will not be granted ; for the nonperformance of it, Reynolds,

whilst the matter was suh judicc^ was no contempt. pi jj g Ld.

Raym. 857. S. C.

II Where there appeared to be objections to the award which In re Cargey,

were pleadable to any action brought upon it, though not such ^ *^"S" ^^^'

as to induce the court to set it aside, they refused to grant an

attachment. II

The defendant, a feme sole, and tlie plaintiff agreed to a re- Anon, B. R.

ference. The defendant was awarded to deliver up two notes, ^ ^•■- P'* ^72.

and pay a sum of money ; she married, and her husband refused iigp/c'vL

to pay; and it was a question, Whether the court could grant 345, 5 p.

an attachment against both or either of them ? Wms. 189.1|]

The course of proceeding in order to obtain an attachment is Kyd on
this : the award must be tendered to the party against whom it '^^,"'"^®' -^^•
is intended to move, and if he refuse to accept it, affidavit of the \^^l\^l^ \
due execution of the award, and of such tender and refusal, must
be made, and on that an application to the court to make the
order of nisi prius a rule of court ; a copy of this rule must then
be served on the par;y refusing to accept the award : if he still
refuse to accept it, an affidavit must be made of personal service
of the rule, and of the disobedience to it ; and then, upon appli-
cation, grounded upon that affidavit, an attachment will be
ordered.

When the award is accepted, but the money being demanded Kyd, 21c.
is not paid, an affidavit must be made of the due execution of IPoi'«"gton
the award, and of the demand and refusal of the money. But iBin-r. 4io.||

X 4 a demand

312

ARBITRAMENT AND AWARD.

Longman v.
Holmes,
2 Black, ft.
990.

Brandon v.
Brandon,

a demand of the money made by a third person authorized so to

do, by indorsement on the award unstamped, is sufficient without |

any warrant of attorney.

II A personal demand is necessary to ground an attachment,

although a specific time and place are appointed for doing the
1 Bos. & Pull, agf jjujj tijg Jemand (if of money) must be made of the exact
394. ^ J ^ •"

sum due.

Stnitt V. And if a part of the sum is well awarded, and a part ill

Rogers, awarded, a demand of the whole will be insufficient.

7 Taunt. 216.

Whitehead V. But if the demand is confined to that part which is well

Firth, 12 East, awarded, the court will grant an attachment for so much.

167.

The courts will not infer personal knowledge of an award from
circumstances, in order to bring the party into contempt ; but if
personal knowledge is brought home to the party, this appears
sufficient without a regular personal service.
C. 264. ; and see 1 Chitt.R. 170.

If the arbitrator has enlarged the time for making his award,
and made it within the enlarged time, it is not enough that this
is stated in the award, but the fact must be verified by affidavit,
and it must also appear by affidavit, that the party against whom
the attachment is sought had notice of the enlargement duly
served on him.

Where a cause is referred by a judge's order, made by con-
sent of parties, and the time for making the award is also enlarged
by a judge's order, it must be shewn on moving for an attach-
ment, that the order enlarging the time was made by consent of
parties, for otherwise the judge had no authority to make it.
Dickins v. But if the arbitrator has authority to enlarge the time by

Jarvis, 5 Barn, indorsement on the order of reference, and that order, together
& C. 528. ^jj^jj ^^Q indorsements, is made a rule of court, it is not necessary,
on moving for an attachment, to shew that the indorsements were
duly made.

Where, according to the terms of the award, something is to
be done by one party previous to the performance by the other,
the performance of such condition precedent, or a tender and
refusal, must be shewn before the one party can obtain an attach-
ment against the other for nonperformance of the award.

If the award appear on the face of it to be bad for uncertainty,
or not being final, or not embracing all matters within the sub-
mission, the court will not enforce performance of it by attach-
ment, and it would seem that the court would refuse an
attachment, if it appeared by affidavit that the arbitrator had
omitted to award on a matter within the submission, and which
was brought before him, since this would be a defence to an
action on the bond or award, or an objection to the award, if the
award were offered in evidence in bar of an action.

But corruption or misconduct on the part of the arbitrators,
cannot be shewn for cause against the motion for an attachment.

Brandcr t.
Penleaze,
5 Taunt. 813
In re Bower,
1 Barn. &

Davis v. Vass,
1 5 East, 97.
Wohlenberg
V. Lageman,
6 Taunt. 251.

Halden v.
Glasscock,
5 Bam. & C
390.

Han^ley v.
Hemington,

6 Taunt. 561.
S.C. 2Marsh.
276.

Pedle)' V.
Goddard,

7 Term R. 73.
Randall v.
Randall,

7 East, 81.
Mitchell V.
Staveley,
leEas^ 58.

7 Terra R. 73.

(H) Compelling Performance by Attachnent,

313

1 Salk. 71.

Bevan v.
Bevan,
5 Term R.
601.

If if be doubtful on the affidavits, whether the party has com- In re Cargey,
initted a contempt, the court will not grant the attachment. ^^ l^oy. & Rj.

It is no answer to the application for the attachment, that the Caila v. EI-
party was proceeding to pay the money under the award, when S^od, 2 Dow.
it was attached in his hands by a foreign attachment from the ^'' ^^^'
sherifTs court of London ; for the arbitrator's award is in fact
like a judgment of the court, and the payment of the money
under the attachment would be an answer to the proceeding in
the sheriff's court. ||

Where the submission is made a rule of court, the award be-
comes so of course, and therefore the motion for an attachment
is the next immediate step.

If the submission to the award be made a rule of court under
the statute, the affidavit on which to move for an attachment
need not be entitled in any cause, but those in answer must be
regularly entitled.

If the time limited by the submission expire without any thing Owen v. Hurd,
being done, and a reference to a second arbitrator be submitted ^ 1 e"" ^•
to, such submission must be made a rule of court, and must be
by the parties to the record, else the court will not interpose by
attachment. For the court cannot in such a case enter into the
merits of tiie award, though with the consent of the parties, for
there is a nullity of jurisdiction.

Where on a reference at nisi prius the plaintiff takes a verdict Kyd, 21 g.
by consent for security («) he may, upon an award being made %°'\^^ ^^^ '^^
in his favour, either enter up judgment on the verdict, and take been'h Id^t
out execution for the sum awarded, if it do not exceed the sum bail, a verdict
for which the verdict was taken, or apply to the court for an should be
attachment. But he cannot enter up his judgment without the !.^^^" on are-
leave of the court, and for this purpose he must have an affidavit ^^^^q^^ • •'
of the due execution of the award, and the demand and refusal prius, othcr-
of the money awarded, in like manner as on a motion for an wise the bail
attachment. (Z*) are discharged.

^ , , , SSaund. 7ii.

b. n. ; but it is otherwise with respect to the sureties in a replevin bond. Moore v. Bowmaker,
6 Taunt. 379. 7 Taunt. 97. Where a verdict is taken for a certain sum, subject to the award
of an arbitrator, he has no authority to award a larger sum ; and if he does the award is bad,
even to the extent of the verdict. Bonner v. Charlton, 5 East, 1.39. And the Court of K. B.
refused to increase the verdict on affidavit that a larger sum was expected to be proved before
the arbitrators ; but Ellenborough C. J. seemed to think that as ail matters in difference were
referred, the arbitrators might, perhaps, award beyond the verdict as to the additional matters.
Pearse v. Cameron, 1 Maule & S. «75.; and see Prentice v. Reed, 1 Taunt. 15l.|| (A) Forster
v. Brunetti, 1 Salk. 84. Read v. Garnett, Barnes, 58.

II But it is now held that this is unnecessary, and that the party Lee v. Lin-
may proceed to enter up judgment, and take out execution for S"™' ^ ^^^
the sum awarded, without any application to the court.

And this may be done without personal service of the award,
but a rule for judgment must be first given. mlhiZf'' ""'

3 B08. & Pull. 244. Hayward v. Ribbans, 4 East, 310.

And if a day is fixed for payment of the money under the Callam v.
award, execution must not be sued before that day. Patterson,

rr 1- • , 1 . , 1 , , . , 4 Taunt. 319.

It a verdict is not taken at the trial, and the arbitrator do not Grundy r.

cxpressl --^

814

ARBITRAMENT AND AWARD.

Wilson,
7 Taunt. 700.
Peters v. An-
derson,
1 Marsh. 2.78.;
and see 1 Cbitt. R. 284.

Woolley V.
Clarke, iBam.
&C,68. ;
ted vide
4 Moo. R. 300.

Robinson v.
Davis, 1 Stra.
526.

Knox V. Sim-
monds, 3 Bro.
Cban.R.36I.

expressly award one to be entered, the court has no authority to
direct it, though the award decides the issues in the cause, nor
can they order a nonsuit to be entered, unless the arbitrator di-
rect it.

Hallv.
Hardy, 3 P.

Wilis. 189,190.

1 Chan. R. 86.

2 Chan.R.304.

3 P. Wnis.
189, 190.

2 Vern. 24,
2Chan.R.504.

Wood V. Grif-
fith, 1 Swanst.
R. 45.

Where a verdict was taken subject to a reference to a barrister,
and the arbitrator having been engaged in the cause declined to
go into the case, the court gave liberty to the plaintiff to proceed
to judgment and execution, unless the defendant would name
another arbitrator. ||

Upon an affidavit that the original award was lost by coming
up in the Bristol mail, which was robbed, an attachment was
moved for upon a copy of it, and granted nisi.

Where a reference has been submitted to under an order of
the Court of Chancery, Lord Thurlow seemed to think, that the
proper motion was not for an attachment, but that the party re-
fusing to perform the award, should stand committed. And
notice of such motion must be personal, not on the clerk in court.
However nothing was done in that case, nor is the practice by
any means settled.]

(1) Of compelling Performance of an Award by Bill

in Equity.

'Y\7'HERE the award is to pay a sum of money, it is said that
a bill in equity to compel performance is improper : but
where it is to do any thing in specie, a court of equity will some-
times lend the aid of its decrees to enforce the execution of it.
And a bill in general will lie for performance, either where the
award hath been made under a submission entered into by order
of the court, or where, though the submission be voluntary or
the award defective in circumstances, the parties have long ac-
quiesced in it, or it has been in part executed.

A court of equity will decree a specific performance of an
award for conveying an estate, where the defendant hath received
the consideration-money for doing it.

On a submission by bond, an award was made, not binding by
form of law, by which the plaintiff was to pay the defendant
900/. and to seal a release to him ; and the defendant was to
assign several securities he had from the plaintiff. The plaintiff
sold some lands to raise the 900/. expecting the defendant to re-
ceive it, as he gave him intimation lie would, and tendered him
the 900/. and a release executed by the plaintiff; and though
there was no other execution on the plaintiff's part, and though
the award was extrajudicial, and not good in strictness of law,
yet the Lord Chancellor decreed it should be performed in
specie.

llThe performance of an award is compelled in equity, on the
ground that the award only ascertains the terms of a previous
agreement between the parties, and although the court will not

decree

(I) Compelling Ferformance by Bill i?i Equity, S15

decree the execution of illegal acts directed by the award, yet, If See Blun-

the acts are legal, the court will not enquire into their reason- ^^'^ ^- ^i"^*"

ableness, since it considers the determination of the arbitrator as ^l^ ' ^^ '
conclusive, as the judge chosen by the parties.

Specific performance cannot be decreed of an agreement to sell Wilksv.Davis

at a price fixed by arbitrators, where the vendor refused to exe- 3 Meriv. 507. ;

cute the arbitration-bond, and it was therefore uncertain that any ^^^ ®^^ Gour-

award would ever be made. set^iDVer"^"

431.

Where there is a palpable objection on the face of an award, Auriol v.
the court may refuse to enforce it, but they cannot set it aside 5"™p *'' ^ ^"'^*
after the time limited by the statute has elapsed. |1

On a bill of review to reverse a decree confirming an award, 1 Chan.R. 139,
the plaintiff assigned for error, that the cause was referred to four
commissioners, and but three certified ; that a lease which he
then insisted upon, was not in issue in the cause ; and that he
never consented to the certificate. But, notwithstanding these
objections, as the decree had been acquiesced in sixteen years
without any attempt having been made to impeach it, the court
refused to reverse it.

Though a court of equity will not hold a defendant to an 9?" '^'"P-
award, where the plaintiff hath neglected to perform his part i\c^ q^^[
within the time limited by the terms of it ; yet if the defendant jackson
after such time accept part performance from the plaintiff, in eVes. 12.
that case a performance on his part to the extent of what he has Milnes v.
accepted from the plaintiff will be decreed. 400^^BlundeU

V. Brettarch, 17Ves.2424J

A. and JB., copartners, submitted differences between them to !J^^°™P^?". '*'*
arbitration, and it was awarded that a part of the stock in trade ^ °^ > ^ * •
should be deposited in the hands of a third person, part thereof
to be delivered from time to time to either party who should pay
any debt due from the partnership estate, the quantity to be in
proportion to the money so paid by him. A moiety of the stock
so deposited was afterwards taken in execution by separate cre-
ditors of A. as his property ; upon which J5., the other partner,
and the partnership creditors, filed a bill to set aside the execution,
and to have the moiety of the stock so seized appropriated to the
payment of their debts, insisting that it was specifically bound
by the award and the execution. But Lord Hardwicke dismissed
the bill, because the partnership creditors were not parties to the
submission, or at all privy to the transaction, or under any obli-
gation of abiding by the award.

Nor will a bill in equity lie to carry into execution an award ibid.
on a voluntary submission, unless there has been an acquiescence
in it by the parties to the submission, or an agreement by them
afterwards to have it executed.

(K)In

316

ARBITRAMENT AND AWARD.

(K) In what Cases, when, and in what Manner Awards
may be relieved against.

Ty HEN an award is put in suit at law, no extrinsic circum-
stance, nor any matter or fact dehors can be given in evi-
dence to impeach it : if it be open therefore to any objection of
this kind, the defendant must apply for relief either to a court of
equity by bill, or, if the submission has been made a rule of any
court of law, to the summary and equitable jurisdiction of that
court of which submission has been made a rule.

llThe cases in the margin decide that partiality and improper
conduct of the arbitrator cannot be made a defence on nil debet
pleaded to an action on the award, nor can such matter be pleaded
to an action on the arbitration-bond.

But if it appear on the face of the award, when set out on
the record, that the award is bad, as being not according to the
terms of submission, or as being uncertain, or not final, this may
be made a ground of defence to the action upon it, either by de-
S. C. Fisher V. murring to the declaration if the whole award is set out, or by
setting it out in any subsequent pleading, and demurring to its
effect.

And so also it may be pleaded as a defence, where the refer-
ence is of all matters in difference, that other matters in difference
were brought before the arbitrator, but that he made no award
on them, since this avoids the award iti toto.

Wills V. Mac-
carmick,
sWils. 148.

Braddick v.
Thompson,
8 East, 544.
Grazebrook v.
Davis, 5 Barrf.
& C. 534.
Cargey v.
Aitcheson,
2 Barn. &
C. 170.
SBinff. 199.

Pembley,
11 East, 188

Mitchell V.

Staveley,

1 6 East, 58.

Ingram v.

Milnes,

8 East, 445.

Reeve v.

Farmer,

4 Term R.

146.

And this defence may be shewn in evidence, if the award is
given in evidence, without being pleaded ; and in answer it may
be shewn that the arbitrator had no notice of the other matters,
and he may be called as a witness to prove this.||

These objections being in general founded on the mistakes or
misconduct of the arbitrators, who are judges chosen by the party
himself, are received by the courts at first with a degree of
caution and reserve : though, if made out to their satisfaction,
relief is certainly afforded.

On a bill in equity, to set aside an award. Lord Chancellor
said, that if it appears that the arbitrators went upon a plain
mistake, either as to the law or the fact, the same is an error ap-
pearing on the face of the award, and is sufficient to set it aside:
aliter, on a doubtful point of law, though the court on deliber-
ation should be of a different opinion.

II The ordinary rule of the courts is, that on a general refer-
ence involving questions of law and fact, the parties constitute
the arbitrator judge of the law between them, and the award
Walter 9 Ves. shall not be set aside on the ground of a mistake in the law, un-
364. Chace v. less it appears on the face of it that the arbitrator intended to
Westmore, decide according to law, and mistook it, in which case the award

iu '' ^i^* is not in effect his award, since he would not have made it had
Sharman v. , , , '

Bell, 5 Maiile ^^ known the law correctly.

& S. 584. Wohlenberg v. Lageman, 6 Taunt. 251. Campbell v. Twejulow, 1 Price, 81. Price

▼. Jones, 2 Young & J. l ] 4.

Thus,

2 Ves. 315.
1 Atk. 64.
1 Salk. 73.

«Vem. 705.

3 Atk. 495.

Hanson v.
Liversedge,
2 Vent. 242.
Young V.

(K) When and how Awards may be relieved against. 317

Thus, where it was referred to arbitrators to distribute the AynsW v.
personal property of an intestate, and it was objected to their Groff,Kydon^
award that they had not followed the statute of distributions, ^^^ see Chine
the court directed the arbitrators to make affidavit whether they v. Ching,
had intended to follow the statute in their award, or to decide 6 Vesey, 282.
merely according to equitable circumstances ; and the arbitrators
swearing that they had not conceived themselves bound by the
fixed rule of law, but had decided according to the supposed in-
tention of the intestate, the court discharged the rule for setting
aside the award.

And so, also, if a mere unmixed question of law is referred Cramp v.
to a professional arbitrator, tlie court will not disturb the award, ,^°"*j,

1 -n 1-x ^\ c C-. iBmg.R. 104.

unless an illegality appear on tlie face or it. Price v. Hollis

1 Maule & S. 105. Steff v. Andrews, 2 Madd. R. 6.

Where, however, it appears on the face of the award that Comforth v.

the arbitrator has decided contrary to law, the courts are bound z^f^"' ^ ''^'""*
to take notice of the objection, and to set aside the award.

Thus, where the arbitrator awarded a sum due from the Aubert v.

plaintiff to the defendant for a moiety of losses paid by defend- ^p^' ^ *

ant on policies underwritten in partnership between plaintiff and ^j^gs y iviji_

defendant, the court set aside the award pro tanio, this part ward, 2 Moo.

of the award appearing on the face of it to be illegal. R. 715.

So, also, where it appeared by a paper containing his reasons, Kent v. Elstob,

delivered with the award by the arbitrator, that he had decided sEastR. 18.
on grounds contrary to law, the court set aside the award.

But where no objection appears on the face of the award, and Delver v.

the arbitrator gives no explanation of the reasons of his de- ^^"^^»
cision, it is not sufficient to shew by affidavit facts which only
raise an inference that the award was made upon an erroneous
view of the law.

And where the point of law is not clear and settled, the court Ridout v.

will not set aside the award on an obiectioii to the arbitrator's law. P^'"» 3 Atk.

•^ 494.

Thus, where the captain of a vessel, at an intermediate port Richardson v.
on the voyage, had sold certain goods of the charterers, to defray Nourse,
necessary repairs of the vessel, at a higher price than they would ' Bam. & A.
have fetched at the port of destination, and an arbitrator, to
whom disputes between the charterers and the owner were re-
ferred, gave credit to the charterers for the full price obtained,
and not for the price which would have been obtained at the
port of destination, the court refused to set aside the award,
since the legal question had never been decided.

And an arbitrator is not bound by a mere rule of practice, /^^ r<? Badger,
adopted by the courts for convenience, and not being a general 2 Barn, & A.
rule of law. Therefore, if he allow interest in account where ^^'*
the courts of law and equity would not do so, it is no ground
for impeaching his award.

Though in general the couits will not set aside an award for a
mistake in law, unless it appear on the lace of it, yet it seems that
in case of a decision perversely wrong the court would correct
it, though the objection appeared by matter dehors the award,

and

318

ARBITRAMENT AND AWARD.

Chace v.
Westmore,
13 East, 357.

Ives V. Met-
calf, 1 Atk. 62.
Anon. 3 Atk.
644. Knox V
Simmonds,

1 Ves. jun.
369. Morgan
V. Mather,

2 Ves. jun. 18.

Rogers v. Dal-
limore,
6 Taunt. 111.
Anon. 2 Chitt.
R^44.; sed
vide Champion
V. VVenman,
Ambl. 245.
Payne v.
Bailey, 3 Brod.
& Bing. 304.

Gordon v.

Mitchell,
3 Moo. 241.

Pinkerton v.

Caslon,

2 Barn. & A.

704.

and more respect is shewn to the award of a legal arbitrator
than of an ordinary individual on a matter of law.

In a case above referred to, Lord Ellenborough C. J. said,
*' there was a great difference in these cases, in considering the
" object of the reference and the description of the person to
** whom the decision is confided by the parties. In ordinary
*' cases, where questions of fact are referred to one who is sup-
** posed to be competent to deal with suchquestionss, though
** not with questions of law, and a question of law happens to
** arise on which he decides in a manner disturbing the whole
'* justice of the case, the court will enter into the enquiry, and
** correct what was erroneous in the decision. But where a
** doubtful question of law arises, it often happens that on such
*' very account they agree to refer to the arbitrament of a gentle-
** man of the profession, meaning to refer the decision of the
" law to him, and to abide by his determination of it : " and
this doctrine was confirmed by his Lordship and the Court in
Sharman v. Bell, 5 Maule & S. 584!. : — " Where the merits
" both in law and fact are referred to an arbitrator of common
" knowledge, as we must presume a gentleman at the bar to be,
" and there is not any question referred by him, the court will
" not open the award, unless something can be alleged amount-
" ing to a perverse misconstruction of the law, or misconduct on
*' the part of the arbitrator."

So, also, where there is a mistake in fact apparent on the face
of the award, or clearly appearing by affidavits, and admitted
by the arbitrator (which is absolutely necessary, and Lord Tliur-
low always required his affidavit), the courts of equity will re-
lieve against the award, or courts of common law, wherein the
reference is a rule of court, will set it aside.

Anderson v. Darcey, 18 Ves. 449.

Thus, in a case where the arbitrator awarded 4:11. to the
plaintiff, and afterv/ards discovered he had made a numerical
mistake, and that his award should have been for 6lZ., and
gave notice of this error to the parties, on a motion to set aside
the award the Court of Common Pleas said they would make the
rule absolute, or send the matter back to the arbitrator, on
which the defendant's counsel consented to amend the award by
increasing the sum to 61/. The courts, however, have no au-
thority to send the matters back for reconsideration, without
consent of all parties ; but in a late case, where the defendant
refused this, the court, at the instance of the plaintiff, set aside
the order of nisi prius for the reference, and the verdict and
award.

Where the award has a clear meaning on the face of it, the
court will not allow affidavits of the arbitrator as to his inten-
tion in making it, to be read, in order to raise an ambiguity.

Where an agreement stipulated that in case of breach of it
the sum of 100/. should be received as a stipulated debt bind-
ing on each party, and an action of debt was brought for gene-
ral

(K) When and how Awards may be relieved against. SI 9

ral damages for breach of the agreement, and was referred to an
arbitrator who awarded only 10/. damages, it was held that, in
order to entitle the party to set aside this award, the affidavits
must expressly state that this clause was pointed out to the ar-
bitrator, and that he was required to act upon it.H

Where it appeared that the arbitrator had made his award, 3 P. Wms.
notwithstanding he had been desired by one of the parties to ^^'^'
postpone it till he could satisfy him as to some facts which the
arbitrator had conceived to be against him, Lord Talbot set
the award aside.

So where the objection was that a part of the evidence had 2 Atk. 64. ^
been shewn only to one of the arbitrators, and not to both, and ^y^> ^40.
the arbitrator to whom it had not been shewn, swore, that he
believed if he had seen it his award would have been different
from what it was, Lord HardmicJie declared the award for that
reason void.

So where one of the arbitrators has had an interest in the 2Vern. 251.
matter in controversy, or has been related to one of the parties; ^85. 514.
or where two of the arbitrators have by fraud or force excluded a
third ; or where they have heard one party, and refused to hear
the other; or have chosen an umpire by lot; in all these cases
the awards have been relieved against.

II So if the arbitrator decide on his own view, without calling C«)2Chitt.R.
the parties before him («), or if he make his award without fully /^s'j ^- j^
hearing all the evidence which can be offered on both sides (Z*), 584. 5 Barn.'
unless indeed the parties assent to the case being closed (c) ; or & C, 534.
if he examine a party (c?) or a witness [e), in the absence of the ^^^ ^ Marsh,
opposite party (unless in the case of mercantile arbitrators, rj^^ g Taunt
where this is frequently the practice (g),) although the arbi- 694. 3 Barn,
trator may make oath that such private examination had not &C. 590.;
influenced his judgment (^); these will, in general, be grounds butseei2Ves.
for setting aside the award. But the award will not be set aside f^\ ^ y^^^ j^g
because the witnesses were not examined on oath, unless an [g) 1 Ryan &
objection were made on that ground at the time of the examin- Moo. N. P. C,
ation(z); nor on the ground of one of the witnesses being ex- ^^' W 6Ves.
amined by the arbitrator after the evidence was closed on both as\ y^g ^
sides, and the opposite attorney gone, unless the re-examination Pull. 91.; sed
were brought about by management of the attorney for the «2f/<r 4 Price,
party (Jc) ; nor because it was drawn by the solicitor of one of the ^'^^' „ .
parties, though such a circumstance is highly indelicate. (/)|| pyu 175'

Tf r I , . . 7 . 1 (0 9Ves.69.

It one ot the arbitrators use any expressions towards either gVes. 315.

party, which discover bias or prejudice in his mind, a court of
equity will set aside the award, though there be nothing to im-
peach the conduct of the other arbitrator who joined with him
in it.

Where the servant of an umpire had given out, before the time 2 Vem. 100,
allowed the arbitrators to make their award was expired, that he
was sure his master would give so much, and he afterwards did
give so much, which was more than was awarded by either of the
arbitrators ; the court looked upon this as evidence of fraud and

corruption.

3^20

ARBITRAMENT AND AWARD.

Ward V. Pe-
riam, 1720,
cited by Ld.
Hardwicke in
2 Ves. 316.

jiAtk. 155.

Ambl. 245.

Cas. temp.
IIai'<lw. 54.

2 Atk. 395.
501. 3 Atk.
529. 644. Mitt".
Eq. PI. 209.

2 Atk. 396.

Andr. 299.

Harrison v.
Grund}',
sStra. 1178.

Freame v. Pin-
neger, Cowp.
23.

corruption, and therefore decreed the arbitration -bond to be
delivered up.

Where an award was made a rule of the Court of K. B., and
on a motion on one hand for an attachment, and on the other to
set aside the award, that court refused to interfere, and left the
plaintiff to his remedy at law on the submission-bond. Lord Mac-
clesfield considered this as a bare bond of award without being
made a rule of court, and that therefore, as the one party was
taking relief by his action, the other was entitled to take relief
by bill in equity.

A bill was filed to set aside an award which had been made a
rule of the Court of K. B. for corruption in the arbitrator ; the
defendant pleaded the award, and submitted to amend any errors.
Lord Hardiioicke said, that the K. B. was the proper court to
examine into the corruption and partiality of the arbitrator ; but
as the answer was very loose and general, and there was an ex-
press submission to amend any errors, he ordered the plea to
stand for an answer, with liberty to except.

On a bill in equity to set aside an award, the court will not
let the party go into any legal objections, except for partiality and
corruption; but if the bill is for an account, and prays to set
aside an award, there, in order to let in such account, the plaintiff
may make legal objections.

Where the arbitrators took money of one of the parties alone
for their charges without any bill delivered, and before the
making of their award. Lord Hardiioicke thought this a suf-
ficient reason to set the award aside ; for, if suffered, it would be
hard to distinguish what is corruption.

If a bill to set aside an award for partiality or corruption be
filed against arbitrators, the charges of partiality must not only
be denied by way of averment in the plea ; but the plea must be
supported by an answer shewing the arbitrators to have been
incorrupt and impartial.

But where the arbitrator has accepted of the office upon con-
dition that the parties should undertake not to bring any bill in
equity against him, but a bill is afterwards brought against him,
and corruption and partiality are charged, the court will order
his name to be struck out from being a party.

The misconduct of the arbitrators cannot be urged in answer
to a motion for an attachment, but is a ground upon which to
move to set aside the award.

A motion to set aside an award under the statute, cannot be
received till the submission is made a rule of court ; and a con-
sent in the submission-bond to make the award a rule of court,
instead of the submission, it hath been adjudged, will not warrant
the court's interposition. But see Barnes, 55. sup-d (B).

A motion to set aside an award under the statute for cor-
ruption must be made before the last day of the next term after
the award is published, else it is too late, and an attachment for
nonperformance may issue.

So,

(K) When and how Awards may be relieved agaiiist. 321

So, a motion to refer back such an award to the arbitrator, 2 Term R. 781,
though there be no charge of corruption, but merely upon the
ground that he had not before had sufficient materials, must be
made before the last day of the next term.

It was holden by Lord Talbot that in awards under the statute sP.Wms.ses.
the confirmation of the submission must precede the making of J eg iP d 'q"*;
the award ; but this hath been over-ruled ; and properly enough, •/>•'♦
for it may happen that the award may be made in the vacation,
and before any term after the submission.

The statute of W. 3. being made to put arbitrations where no 2 Burr. 701.
cause was depending upon the same footing as those where Barnes, 56, 57.
there was one, and being only declaratory of what the law was nj ' . " ^
in the latter case, it seems to follow, that objections which arise tied otherwise
upon the face of the award may be made at any time; and that and applica-
the limitation to the second term is confined merely to such ^'9"^ '** ^^*'
objections as affect the conduct of the arbitrators. witifin^Th t

tute must be made within the time limited, although the objection appears on the face of the
award. Zachary v. Shepherd, 2 Term R. 781. Lowndes v. Lowndes, 1 East R. 276. Where
the submission is not within the statute the court are not absolutely limited as to the time for
receiving an application to set aside the award ; but they will in general cases guide their dis-
cretion by the rule laid down by the statute. Anderson v. Coxeter, 1 Strange, 301. Rogers
V. Dallimore, 6 Taunt, ill. The time limited by the statute does not apply to awards made
under orders of nisi prius. Synge v. Jervoise, 8 East, 466. Where an award within the
statute was made after the essoign day, but before the quarto die post, it was held to be made
within the term, so that a motion to set it aside might be made at any time before the last day
of the term next following. In re Burt, 5 Barn. & C. 668. Where a cause is referred by
order of nisi prius^ a motion to set aside the award must be made within the time allowed for
moving for a new trial, unless a sufficient reason for delay be shewn. Rawsthorn v. Arnold,
6 Barn. & C. 629.||

It was formerly holden, that on a submission by consent Cresslyv. Car-

under an order of a court of equity, exceptions might be made "'^ton,

to the award, as to a master's report. But Lord Tliurlaw dis- j chan Ca *

approved of this practice, conceiving that if it lay open to ise. HideV.

exceptions, it seemed rather a reference than an award : that the Cooth, 2 Vem.

proper way is to move to set aside the award ; and the topics in ]^?' ^^??.'^"

the exceptions will apply to such a motion. ^^^ °j g'j.^^

Chan. R. 598. Price v. Williams, 5 Bro. Chan. R. 164. It is admitted that exceptions will
lie to an award ; but they must be only to such matters as appear on the face of the award,
not to the facts in the award, or any matter deliors : an objection of that nature must be made
upon motion to set aside the award, supported by affidavit. Dick v. Milligan, 4 Bro. Chan.
R. 117.

To a bill in the Exchequer, to set aside an award for undue Bunb. 265.
practice, the defendants pleaded (among other things) that the i Barnard. 75.
submission was made a rule of the Court of King's IBench, and '^^"
that there had been no application to that court pursuant to the
statute of 9 & 10 W. 3. A question therefore arose upon the
statute, Whether a court of equity were not precluded from
examining into the award ? The Lord Chief Baron and Baron
Comyns were of opinion that it was not, (the time in B. R. being
elapsed,) but Baron Carta- that it was. Baron Hale duhkante.
At last the whole court agreed, that the plea should stand for an
answer, with liberty of excepting to it.

A bill in equity will not lie agahist an arbitrator for a dis- 3 Atk. 644.
Vol. I. Y covery

3®2 ASSAULT AND BATTERY.

covery of the grounds upon which he made his award ; but if
tliere be any palpable mistake, or miscalculation, the party
aggrieved may bring his bill against the party in whose favour
the award is made, to have it rectified.]
Doe V.Brown, || Where an award is void, and nothing can be done upon it

5 Barn. & C. without suit, the court will not interfere to set it aside, because
Rv 100 °^ '^"^'^ ^ '^"'^ must fail. But where a cause is referred by order

oi 7iisi prius^ and the arbitrator has power to order a verdict to
be entered for either party, and he makes an award, ordering a
verdict to be entered, although such award be void, (being made
after a revocation of the submission,) yet the court will set it
aside ; for otherwise the party in whose favour the award is made
will have judgment on the verdict, without any new proceeding
to enforce the award.
Kennard v. A party, after receiving the costs of reference and award,

6 r" 801 "* ^^^*^^' ''^y ^^ terms of a rule of reference, are to be paid by

the other party, cannot move to set aside the award.
Reg. K.B. Where a rule to shew cause is obtained in the Court of

2G4 4 Barn. King's Bench, to set aside an award, the several objections
& A. 539. See intended to be insisted on at the time of making such rule ab-
6 Barn. & C. solute must be stated in the rule to shew cause. And the rule
629. 11 Price, jg ^]jg same in the Court of Exchequer. ||

ASSAULT AND BATTERY.

(A) What shall be said to be an Assault.

(B) What shall be said to be a Battery.

[(B 2.) In what Manner they are to be charged.]

Pleas may be pleaded to them, and of the Man-
ner of setting forth the Justification.

(D) In what Manner they are to be punished.

(A) What shall be said to be an Assault.

P'^Jjo"' ^'-^' A^ assault is an attempt or offer, with force and violence, to
^'RollAbr ^^ ^ corporal hurt to another, as by striking at him with

545. Vent. 256. o^ without a weapon, or presenting a gun at him at a dis-
Hawk. P. C. tance to which the gun will carry, or pointing a pitch-fork at
263" him, standing within the reach of it, or by holding up one's fist

at him, or by drawing a sword and waving it in a menacing

manner.

(B) What shall be said to he a Battery. ^3

But if A. lays his hand on his sword, and says, that if it taere Mod.s.sKeb.

not assise time I "iWuld not take such language from yaii ; this is no •'^45. S.C. lo

assault, for it is plain he did not design to do him any corporal ^^^^- J?^-

hurt at that time, and a man's intention must operate with his ^^ 5 pi so '

act in constituting an assault. Giib. Law of

Evid. 256.

[The act of criminal conversation with another man's wife is 2 Salk. 552.
an assault; force and violence being supposed in law to accom- "^ ^oa. 8I.
pany this atrocious injury to the husband, in respect of whom the
consent of the wife is as nothing.]

It seems agreed, that at this day no words whatsoever, be they Hawk P. C.
ever so provoking, can amount to an assault, notwithstanding 263. (a) But if
the many ancient opinions to the contrary, {a) Ing hng^age'is

given, without reasonable cause, and the party offended is tempted to strike the other, and an
action brought, and the general issue pleaded, few juries would give damages to carry costs,
and few (if any) judges would certify.

Every battery includes an assault; therefore, if the defendant Salk. 384.
be found guilty of the battery, it is sufficient. ^'* n^'gjl**^*

(B) What shall be said to be a Battery.

A NY injury whatsoever, be it never so small, being actually g Mod. 149.
done to the person of a man, in an angry or revengeful, or 1 72. Mod. 5.
rude or insolent manner, as by spitting in his face, or any way ^,^^^* ^^*'
touching him in anger, or violently jostling him out of the way, ^^^ [And the
are batteries in the eye of the law. act causingthe

in jury need not proceed from the immediate assault of the defendant ; as where the defendant
threw a lighted squib into a market-place, which being tossed from hand to hand by different
persons, at last hit the plaintiff in the face, and put out his eye ; it was adjudged that this was
actionable as an assault and battery. Per three justices, cont. Blackstone J. Scott v. Shep-
herd, 2 Black. R. 892. 3 Wils. 403. S. C. So if a person pushes a drunken man against
another, and hurts him. Short v. Lovejoy, coram Lee C. J. Guildhall, 1752. Bull.Ni.Pri. 16.]

But to lay one's hands gently on another whom an officer has 2 Roll. Abr.
a warrant to arrest, and to tell the officer that this is the man he p^^ ^4*^'
wants, is not a battery.

So if two by consent play at cudgels, and one happens to Dalt. c. 22.
hurt the other, as their intent was lawful and commendable, in Bro. Coron.
promoting courage and activity, it does not seem to amount to ^z^^- [^"t' see
'-^battery. JJ-f-^^*

Clarke, at Abingdon Assises coram Parker C. B. who held that it was no defence to allege that
the plaintiff and defendant fought together by consent, the fighting itself being unlawful.
Bull. Ni. Pri. 16. (4th edit.) So if one license another to beat him, such licence is no defence,
because it is against the peace. Matthew v. Ollerton, Comb. 218.]

So if one soldier hurts another by discharging a gun in ex- Hob. 134.
ercise, this cannot amount to a battery, though if it be done 2 Roll. Abr.

without sufficient caution, he is liable to an action at the suit of f"*? '. [Nothing
.1 i • • 1 but mevitable

the party injured. necessity shall

excuse a trespass. Dickenson v. Watson, Sir T. Jones, 205, Underwood v. Hewson, Stra.
595. Raym. 467. 2 Black. R. 896,]

So if by a sudden fright a horse runs away with his rider, Gibbons v.
and runs against a man, it is no battery, and this may be given Pepper,

Y2 in

SSd, ASSAULT AND BATTERY.

4 Mod. 405. in evidence on the general issue : but if it were occasionetl by
SC iLd " \hird person whipping the horse, such person would be the
Ravm.ssls.C. trespasser.]

[(B 2.) In what Manner they are to be charged.

Michcll V. nPHE declaration cannot lay the assault on a day certain, and
^'^'*'^'ii?'*'r 'i" ^^^ divas other days and times : for an assault is one entire

vVurser"" ^^ * individual act, and cannot be laid with a co7itinua7ido .• and upon
6 East, 395. such a declaration the defendant could not prepare iiimself with
ace. In these a defence, because he could not know whether the plaintiff' meant
cases the de- ^q „q ^q,, q^q qj. tvpenty assaults,
claration al- " •'

leged that the defendant on divers, &c. made an assault, but an allegation that the defendant
on divers days, &c. assaulted is good. Burgess v. Frcelove, 2 Bos, & Pull. 425.[1

Amyon v. ^" ^he King's Bench, where the action is by bill, the offence

Shore, 1 Stra. should be charged positively, and not by way of recital, with a

62i.(a)White whereas, ^r. : but this is not material in the Common Pleas (a),

«'ivM^o^- for in that court the writ being set out in the declaration helps

2 VVlls. 20j. 1 r • •

Douglas V. ^"^ want or a positive averment.

Hall, Barnes, 360. 1 Wils. 99.

Newman y. The plaintiff" may lay in his declaration many things in aggra-

f ™'*'''„1? vation, for which he himself could not maintain an action ; as

642. 1 he ., f. , . , , . „

plaintiff could ^^^* maknig an assault upon his servants.

not maintain an action for the personal injury to the servant, which was all that was alleged

in the declaration in 2 Salk. 642.; but he may sue for the loss of service with a ])er quod

servitium amisit, and may join a count of this sort with counts for an assault and battery of

himself. Ditcham v. Bond, 2 Maule & S. 436.; and see Cro. Jac. SOl-H

Russel V. In an action by husband and wife for a battery on her, pei'

Corne, 1 Sal c . ^^^^^ jj^g husband's business remained undone ; on motion in

arrest of judgment, the declaration was holden good, because

the battery itself is actionable, and the^^r qtiod only aggravation;
i. Stra. 1094. and Holt said he would not intend the judge suffered that to be

given in evidence.
Westbrookev. The defendant gave in evidence that he was married to the
Strutville, plaintiff; and to encounter that evidence the plaintiff was per-
1 tra. /9. niitted to prove that she had another husband living when she

married the defendant.]

Wilfon V. II Where two defendants were held to bail for an assault and

Edwards, battery, and the plaintiff* declared against one only, it was held

SBarn. &C. *i 4. u • u^ . j m

34. 5 Dow. "^^^ "® ""'g^t to do so. II

& R. 622.

(C) In what Cases they may be justified, and what
Pleas may be pleaded to them ; and herein of the
Manner of setting forth the Justification.

Vide Hawk. T F an officer having a warrant {b) against one who will not
P.C.259. 26 . suffer himself to be arrested, beat or wound him (c) in the
authoHtTes attempt to take him, he may justify it. So if a parent, in u
there cited. reasonable manner chastise his child, or a master his servant,
[C6) Where de- being actually in his service at the time, or a schoolmaster his

scholar.

scholar, or a gaoler his prisoner, or even a husband his wife; or fendant justi-
if one confine a friend who is mad, and bind and beat him, ^c. fies under a
in such a manner as proper in his circumstances ; or if a man ^'^'^"^^^ '^^-
force a sword from one who offers to kill another ; or if a man cUiction^oF'it'
gently lay his hands on another, and thereby stay him from en- is not requir-
ticing a dog against a third person ; if I beat one (without ^^^ for it must
wounding him, or throwing at him a dangerous weapon) who |f ""^J^"""!!^" *'*
wrongfully endeavours with violence to dispossess me of my Batcman v.
land [cT) or goods, or of the goods of another delivered to me to Woodcock,
be kept for him, and will not desist upon my laying my hands Cro. Jac. 572.
gently on him and disturbing him ; or if a man beat, wound, or ^f>, ** f:'
maim one who makes an assault upon his person, or that of t^jg case be
his wife, parent, child, or master; or if a man fight with, or justified by the
beat one who attempts to kill any stranger ; in these cases it '"^''^ arrest :
seems the party may justify the assault and battery, {e) must ekher"'

plead that he gently laid his hands on the plaintiff in order to arrest him, and that he actually
did arrest him ; as in Patrick v. Johnson, 2 Lutw. 927. 3 Lev. 403. though that way of
pleading has been doubted of; or that the plaintiff made resistance, and was going to rescue
himself, and by reason thereof he beat him in order to secure him : for though an arrest im-
plies an assault, yet it does not admit a battery ; and further, an officer cannot justify beating
a man without resistance. Truscott v. Carpenter, 1 Ld. Raym. 229. Williams v. Jones, Cas.
temp. Hardw. 298. 2 Stra. 1049. S. C. {d) Where the injury is a mere breach of a close in
contemplation of law, the defendant cannot justify a battery without a request to depart; but
it is otherwise where any actual violence is committed, for there it is lawful to oppose force
with force. Green v. Goddard, 2 Salk. 691. 2 Inst. 316. Seaman v. Cuppledick, Owen, 150.
||Therefore a plea justifying beating and wounding the plaintiff by way of mollitbr vianus m-
posuit to turn the plaintiff out of defendant's house is bad. Gregory v. Hill, 8 Term R. 299.
But if the plea state that the plaintiff forcibly and with strong hand endeavoured to break and
enter defendant's close, it may justify beating and bruising the plaintiff in defence of possession.
Weaver v. Bush, 8 Term R. 78. The defendant cannot justify an assault in throwing water
on the plaintiff in order to hinder the plaintiff from proceeding in obstructing an ancient
window of the defendant. Simpson v. Morris, 4 Taunt. 821.|| (e) So a churchwarden may
justify taking off the hat, or laying hands on a person who is disorderly in church, and turning
nini out for disturbing the congregation ; but it must be by a niollitlr manus imposuit : Howe
V. Planner, 1 Saund. 13. So the defendant may justify even a mai/iem, if done by him as an
officer in the army for disobedience of orders, or other militJiry offence ; and he may give in
evidence the sentence of a council of war upon a petition against him by the plaintiff; and
if by their sentence the petition was dismissed, it will be conclusive evidence in favour of the
defendant. Lane v. Degberg, H. 11 W. 3. per Treby C.J. Bull. Ni Pri. 19.]

And on an indictment the party may plead not guilty, and 6 Mod. 172,
give the special matter in evidence ; but in an action of trespass t^^) Matter of
he must plead it specially, fe) Srel" "

cither pleaded, or given in evidence under the general issue ; but matter of justification must
be always pleaded. Bull. Ni.Pri. 17. Co. Lit. 282. b. But where in an action for an assault
and false imprisonment against the captain of a ship, who pleaded not guilty ; the defendant
cross-examined the plaintiff's witnesses as to expressions used by the plaintiff, which wonlil
have justified the imprisonment, they tending to create mutiny and disobedience; though this
evidence was objected to, yet the judge admitted it, holding lohat tva^ said at the time to be
good evidence in mitigation of damages; for every thing which passed at the time was part of
the transaction on which the plaintiff's action was founded, and therefore he could not
be surprised by the evidence. Bingham v. Gatnauh, coram Jiul^er J. London, 1788. Espin.
Ni. Pri. 317.]

[It is no plea that the defendant hath been convicted on an Bull, Ni.Pri.
indictment for the same assault, and paid a fine to the king; for *^' ^ Str«.<>8-
this suit is instituted for the private redress of the party injured.
So vire versa.']

IJAnd an action is maintaiiiable for damages after the de- Crosby v.Leng,

Y 3 fendant

12 East, 409.

ASSAULT AND BATTERY.

Blake v.
Grove, 1 Sid.
175. iKeb.
f6l.S.C.

fendant has been acquitted on an indictment for the assault,
unless the plaintiff is shewn to have colluded in procuring the
acquittal. ||

In trespass for assault and battery, the defendant justifies by
a molliter manus imposuit, for due correction as his servant, and
pleads over, that since the time the plaintiff exoneravit et relax-
avit (without saying per scriptum) to the defendant the said
matter : to this plea it was specially demurred for doubleness ;
and the opinion of the court was, that it was double ; for though
the release be not sufficiently pleaded, yet it is pleaded so as
issue may be taken upon it, which will make it double.

[A former recovery is a good plea, notwithstanding subsequent
damages : for the consequence of the battery is not the ground of
the action, but the measure of the damages.

So, if a battery be committed by several, and a recovery had
against one, such recovery may be pleaded in bar to an action
for the same battery brought against another.

The defendant may plead not guilty isoithin faiir years next
preceding the commencement of the suit ; but not guilty 'within
six years will be bad. (a)
423. 11(a) Only if objected to by special demurrer. Macfadzen v. Olivant, 6 East R. 587.11
Co. Litt. 282. This being a transitory action, in which the time or place are
|J2Sand. 5. b-ll merely inducement, the place cannot be traversed without special
7 Jac. 1. C.5. cause of justification, which extends to some certain place, as if
which empow- a constable of a town of another county arrests the body of a
ers justices of man that breaketh the peace there, he may traverse the county,
the peace, &c. jjy^ jjg must not rest there; he must traverse all other places,
general issue, saving in the town whereof he is constable,
and give the special matter in evidence.

Gibbon v, ^^ ^^ defendant jM5/i)&5 the assault and battery, he must con-

Pepper, 2 Salk.j^ss it; or, on demurrer, the plaintiff' shall have judgment.
657. Ld. Raym. 58. S. C.

Pendlebury v. Son assault goes to the whole declaration ; but a justification in
^. ^pp any other way applies only to those parts, which it particularly

takes notice of, and is therefore bad; nor will a general traverse

as to the rest supply the omission.
Jerome v. Phear, Cro. Eliz. 93,

Fetter v.
Ucale, 1 Salk.
31.

Yelv. 68.

St. 21 J. 1.
c. 16. Black-
more V. Tid-
derly, 2 Salk

Truscott V,
Carpenter,
1 Ld. Raym. 229.

Dr. Groenvelt To the vi et armis, battery, and wounding, the defendant
1 Ld ^"^^^ pleaded not guilty ; and as to the residue, justified ; it was ob-

Barfoot
V. Reynolds,
2 Stra. 953.
So in the case
of a wife in
defence of
her husband.
Leward v.
Basely, 1 Ld.
Raym. 62.

jected, that here was no answer to the assault : but the objection
was over-ruled, for the residue includes the assault.

In an action against a servant, if he pleads a justification in
defence of his master, he must plead it thus : " That the plain-
" tiff would have beaten his master if he had not interposed,
*' protit ei bene licuit" For the servant can only strike to pre-
vent an injury, not by way of revenge ; and therefore where the
servant pleaded, " That the plaintiff' having assaulted the master
*' in his presence, he, in defence of his master, struck the plain-
" tiff," the plea was holden ill on demurrer; for the assault on
the master mieht be over when the servant struck the plaintiff.

The

327

The plea o^ son assault admits an assault; and therefore where
the memorandum was generally of the term, and the plaintifFj on
the defendant's failure in his plea, went on and proved an assault
on a day within the term, the court held it well enough ; for it
was unnecessary for him to give any evidence at all, unless to
aggravate damages ; and he shall not be nonsuited, because it is
amendable by a new bill. If this come out on the defendant's
evidence, who has otherwise proved his plea, the defendant
ought to have a verdict, unless plaintiff prove another battery
previous, which in such case ought to be deemed the foundation
of the suit.]

pf the defendant, in pleading a justification to a declaration
for several different assaults, first aver that they are one and the
same, and the plaintiff then takes issue on the substance of the
justification, the case is confined by the pleadings to only one
assault, and the plaintiff cannot give in evidence a second. But
it seems to be the better opinion, that such an averment of
identity is bad if demurred to.||

In an action of battery, the defendant pleads that he was
master of a ship, and that the plaintiff being his carpenter and
servant in the ship, neglected his duty, and gave him saucy
language, and that therefore moderate castigavit ; plaintiff replies
no7i moderate castigavit, and issue joined, and verdict for the
plaintiff; and in arrest of judgment it was insisted, that moderate
castigavit was not a pertinent negative, the proper issue being
immoderate castigavit ; but the court held it well enough, espe-
cially after verdict.

In an action of assault and battery, and wounding, it was laid
with a mutilavit et sinistr. hracli. fregit ita quod usum sinistri
brachii amisit : to this the defendant pleaded de so?i assault
demesnes and on demurrer it was shewn for cause, that this
being a heinous battery, and amounting to a mayhem, he should
have shewn to the court that the assault was with such violence,
that he could not otherwise have defended himself but by maim-
ing the plaintiff; and the pleading should have been, that the
plaintiff mayhemasset et mdner asset the defendant nisi, Sfc. But
the court held the plea good ; and that it was matter upon evi-
dence, whether the assault were proportionable to the battery ;
for if it were not, the issue would be for the plaintiff, although
the plaintiff did make the first assault; for every assault will not
justify every beating; but it must be such a one as may draw a
probable danger and fear upon the person upon whom it is
made.

In assault, ^r. the defendant pleaded son assault demesne, and
the plaintiff replied, that he was standing at his gate, and that
the defendant being on horseback, offered to ride over him,
whereupon he molliter assaulted the plaintiff in defence of him-
self, qua est cadem, Sfc. ; and on demurrer to this replication it was
adjudged to be ill, because he thereby had confessed that he had
made the first assault; for he should have pleaded molliter manus
imjwsuit to hinder the riding over him.

Y 4 [In

Hay V.

Kitchin,
1 Wils.171.
S.C. 2Stra.
1271. by the
name of Gtiy
V. Kitcliiner,
BuIl.Ni.Pri.
17.

Gale V. Dal-
rymple, 1 Ry.
& Moo. Ca.
118.

Sid. 444.
2 Keb. 623.
Vent. 70. S. C.
Aubre and
James.

Sid. 246. Keb;
884. 921. S.C.
between
Danny and
Lucy. Cock^
croft V. Smith,
Ld.Rayra. 177.
2 Salk. 642.

Lev. 282. Sid.
441. Mod. 56.
2 Keb. 597.
S. C. between
Jones and
Trcsilian.

328

ASSAULT AND BATTERY.

Shingleton v.
Smith,
SLutW. 1481.

Taylor v. [In assault and battery, the defendant pleaded that he was

Markham, seised of the rectory of D. in fee, and that the corn was severed

Yek^n?^^* from the nine parts, and for that the plaintiff would have carried

S.C. 1 Brownl. ^way his corn, he stood in defence thereof, and kept the plaintiff

215. S.C. from carrying it away; so that the harm which the plaintiff

received was of his own wrong, S^c. The plaintiff replied de

injuria sua propria ahsq. tali causa; and, upon demurrer, the

replication was holden to be good, because the plaintiff claimed

nothing in the land or corn, but only damages for the battery,

which is collateral to the title ; and therefore a general replication

was good ; for in a mere assault and battery, the possession only

can be material ; but it is otherwise when the right may come in

question.

To a plea oi son assault, the plaintiff replied that the defendant
attempted with his whole force to beat and wound a horse which
the plaintiff had in his care ; and that in defence of the horse he
laid his hands upon the defendant, prout ei bene licuit : this
replication was adjudged insufficient; for it ought to have alleged
that the defendant had actually beaten the horse before the
plaintiff laid his hands upon the defendant ; as in the plea of son
assault, in which the defendant always alleges that the plaintiff
made an assault upon him, before he says that he defended him-
self, 8fc.

A molliter manus imposuit will include a battery where the
cause is sufficient ; for to lay hands on another, against his will,
is a battery : it will not indeed be a defence for a wounding : but
neme of King, if the battery be so outrageous, that a molliter manus imposuit is
V. Peppard. not true, it ought to be specially shewn by the plaintiff, Hby a
ficatioiTor*^^" "^^ assignment, II else it shall be a good justification.
*. assaulting, seizing, and grasping," and so also of " ill-treating," admits a battery, see Smith
V. Edge, 6 Term R. 562. Johnson v. Northwood, 7 Taunt. 689. 1 Moo. R. 420.1|

Where to a plea of son assault, the plaintiff replies molliter
manus imposuit, and the parties agree in the time, there is no
occasion for an averment that it is the same trespass, ^x.'}

II Where the declaration alleges an assault and imprison-
ment, and that during the imprisonment the defendant struck
and pulled about the plaintiff, and the defendant justifies the
assault under process of arrest against the plaintiff, and goes on
to justify the striking the plaintiff by reason of his violent con-
duct, and in order to prevent his escape, and the plaintiff replies
de injuria, &c. the defendant on this issue is bound to prove the
whole facts alleged in justification ; and if be fail in proving the
plaintiff's violent conduct, the plaintiff is entitled to judgment.

Where the plaintiff declared against three for a joint assault
and battery, and two of them pleaded not guilty, to which the
similiter was added, and the third justified in defence of his free-
hold, to which the plaintiff replied, that he used more force than
was necessary for defence, a rejoinder by all the defendants, that
they did not use more force than was necessary, was held bad,
and the plaintiff's replication gootl.||

For

King V. Teb-
bart,Skin.587
S. C. Comb.
227. by the

Ibid.

Phillips V.
Howgate,
5 Barn. & A.
220.

Morrow V.
Belcher,
4 Barn. & C.

704.

ASSIGNMENT. 329

For damages in this action, see tit. " Damages," (D)(E);
and for costs, tit. " Costs," (B) 3.

(D) In what Manner they are to be punished.

"I^VERY person guilty of an assault or battery, is subject both Hawk. P. C.
to an action at the suit of the party, wherein he shall render 264. A de-
damages, Src and also to an indictment at the suit of the king, fendant is not

wherein he shall be fined according to the heinousness of the '° ^.^ , ^ ., ***

^ o special bail,

onence. unless the

battery be grievous ; in which case the writ may be marked for special bdl. Carth. 278. An
action of assault and battery is within the statute, which gives no more costs than damages.
Vent. 256. For the penalty for assaulting a servant of a knight or burgess in parliament, vide
the statute 5 H. 4. c. 6. For punishing those who assault any coming to parliament, or to the
king's council, 11 H. 6. c. 11. Concerning an assault on a privy counsellor in the execution
of his office, 9 Ann. c. 1 1. For which vide tit. Felony. For beating or challenging to fight
for money won at play, 9 Ann. c. 14. and tit. Gaming. For the offence of assaulting in a
church or church-yai'd, see 5&6E. 6. c. 4. And that churchwardens who whip boys for
playing in the church, or put off the hats of those who sit there with them on, or who gently
lay their hands on an excommunicated person to turn him out, are not within the statute.
Sand. 13, 14. Sid. 301. For striking within the king's palace, see Hawk. P. C. 86.

II And if a party proceed both by action and indictment, the Jones v. Clay,
court will not compel him to make his election: and it is dis- !„^"^
cretionary in the Attorney-General whether he will, on appli-
cation, grant a nolle prosequi to the indictment. U

ASSIGNMENT.

A N assignment is the transferring and setting over to another
of some right, title, or interest in things, in which a third
person, not a party to the assignment^ has a concern and interest.
How far the privity of contract is destroyed by the assignment,
and what remedies the parties may have against each other, is
set down under the head of covenajits ; and therefore I shall
here only consider,

What Things are assignable.

^ POSSIBILITY, right of entry, or thing in action, or cause ^{J''^^^^'^'

of suit, or title for a condition broken, cannot be granted or ^^^^{ g ^j ^ *

assigned over by law; for if this were permitted, it would pro- 26. pi. i. [But

mote maintenance, and prove prejudicial to such as, being able »" rights,

to contend with those with whom the original contract was, 'i^'^'*' ^"'^ ,®^"

might find themselves depressed by a powerful adversary. released to the
terrctenant, for this prevents suits and contentions. Lampct's case, 8 Co. 48. a.]

But

330 ASSIGNMENT.

Co. Lit. 232. But though a bond, being a cJiose in action, cannot be assigned

(a) And by the over SO as to enable the assignee to sue in his own name (a), yet
modern prac- j^g j^jjg ^^ jjjg assignment such a title to the paper and wax, that
tice he may i i ° i -^

sue for it in ^^ may keep or cancel it.

the name of the obligee, as his attorney; but there should be an express authority inserted in
the assignment. [The king was always an exception to this rule, and his assignee may sue in
his own name. Dyer, 30. b. p. 208. Equity has ever protected assignments of choses in action.

1 Ves. 41 1, 412., and courts of law will now take notice of them ; as, where the obligee had
assigned over a bond, and afterwards became a bankrupt, it was holden, that he himself might
bring an action upon it, notwithstanding the bankruptcy. Winch v. Keeley, 1 Term R. 619.

50 it has been holden that in an action brought on a bond given to the plaintiff in trust for
another, the defendant may set off a debt due from the person beneficially interested in Hke

■ manner as if the action had been brought by him. Bottimley v. Brooke, M. 23 G. 3. C. B.
Rudge v. Birch, M. 25 G. 5. B. R., cited in 1 Term R. 621. and 4 Term R. 340. ||But a de-
fendant cannot set off a bond given by the plaintiff to a third party and subsequently assigned
to the defendant, since the bond in such case was not given originally in trust for the de-
fendant. Wake v. Tinkler, 16 East, 36. If the obligor, after notice of the bond being
assigned, take a release from the obligee, and plead it to an action brought in the obligee's
name for the benefit of the assignee, the court will set aside the plea ; and in such case they
will not give leave to the defendant to plead payment to the obligee. Legh v. Legh, 1 Bos. &
Pull. 447. ; and see Craib v. D'Aeth, 7 Term R. 670. note (.b).|| The assignment of a chose in
action is a good consideration for a promise. 1 Roll. Abr. 29. Sid. 212. T. Jones, 222. ;
though the debt assigned be uncertain. Moulsdale v. Birchall, 2 Black. R. 820.] |lAn action of
indebitatus assumpsit may be maintained by the assignee of a Scotch bond against the obligor in
his own name. Innes v. Dunlop, 8 Term R. 595. ; and so also by the assignee of an Irish
judgment by cognovit. O'Callaghan v. Thomond, 3 Term R. 82.|1

2 Vern. 595. Also in equity a bond is assignable for a valuable consideration
(i) There paid (6), and the assignee alone becomes entitled to the money, so
must be a con- ^j^^j. jj- ^j^^ obligor after notice of the assignment pays the money

51 fl prflti o ti o i. ^ •

pjud. 3 Chan, to the obligee (c), he will be compelled to pay it over again.
R. 90. (c) 2 Vern. 540. But payment to the obligee without notice of the assignment, is good.
Chan. Ca. 252. HAfter notice the courts of law will not give leave to the obligor to plead
payment to the obligee. 1 Bos. & Pull. 447.1|

2 Vern. 428. An assignee must take it subject to the same equity that it was
o^p IIP • \\^' ^^ ^^ hands of the obligee ; as if on a marriage-treaty the in-
V. Rose tended husband enters into a marriage-brokage bond, which is
3Meriv.86.|l afterwards assigned to creditors, yet it still remains liable to the

same equity, and is not to be carried into execution against the
obligor.

3 Lev. 312. If the administrator of a conusee of a statute extends the lands,
Stephens and j^j^^j ^ liberate is returned, and before entry or recovery of the

4 Mod. 4*8. possession the administrator assigns his interest, the assignment
Show. 290. is void, for by the liberate he has accepted the possession, and is
2 Salk. 563. estopped to say the contrary ; and then by suffering the owner of
oi • ^i'J' the lands to continue in possession, this turns his possession into

Skm.300. . , 1 • 1 . ^ • 1 1 1 r I -1 • 1

S. C. 1 Show. ^ right, which is not assignable beiore the possession be regained
290. S. C- by ejectment or re-entry, or some lawful means.
10 Co. 47. If there be a devise of a term to A. for life, remainder to B.,

[But interests B. cannot in the life-time of A. assign his interest, because he
m contingency jj^g ^^^ ^ Ytare possibiUty, for A. may outlive the number of
respectmg *^ •' •'

personal es- years.

tates, are assignable in equity for a good consideration. Goring v. Bickerstaffe, 1 Chan. Ca. 8.
Cookes v. Bellamy, 1 Sid. 188. Wind v. Jekyll, iP. Wms. 572. Kimpland v. Courtnej',
aFreem. 250. Theobald v. Duffey, 9 Mod. 101. Higden v. Williamson, 3 P. Wms. 132.
Duke of Chandois v. Talbot, 2 P. Wms. 608. And a possibility, whether in real or personal
estate, is transmissible and devisable. Sheriff v. Wrotham, Cro. Jac. 509. Pinbury v. Elkins,

1 P. Wms.

ASSISE. 331

1 P. Wms. S66. King v. Withers, Ca. temj). Talbot, 117. Chauncy v. Graydon, 2 Atk. 616.
Peck V. Parrot, 1 Ves, 256. Selwin v. Selwin, 2 Burr. 1131. 1 Black. R. 231. S. C. Dawsoo
V. Killet, 1 Bro. Ch. R. 119. Barnes v. Allen, 1 Bro. Ch.R. 181. Moor v. Hawkins, 1 H.
Black. R. 34. Roe V. Jones, 1 H. Black. R. 30. sTerraR. 88]

A personal trust which one man reposes in another, cannot (a) Trustee
be assigned over (a), however able such assignee may be to exe- f^""ot assign
niteit t3 J- his trust.

^"^^ "• 4 Inst. 85.

Vide head of Trust ; nor a guardian, Vaugh. 180. Whether a pawnbroker, by reason of the
special property he has in the pledge, can assign it. Qii. et vide 1 Bulst. 31. Owen, 124.

[Neither the full pay (6), not the half pay (c) of an officer in ,,. „ . ,
the army, can be assigned.] v. Reade

I H. Black. R. 627. (c) Lidderdale v. Duke of Montrose, 4 Term R. 248. Flarty v. Odlani,
3 Terra R. 681. Contra, Stewart v. Tucker, 2 Black. R. 1 137. By 1 G. 2. st. 2. c. 14. § 7. all
assignments of seamen's wages are declared void.

II An equitable assignment of a chose in action may be by Heath v. Halt,

parol. II 4 Taunt. 526.

Several things are assignable by acts of parliament, which seem 3 & 4 Ann.

not assignable in their own nature; as promissory notes, by *^*?*

3 & 4 Ann. cap. 9. bail-bonds by the sheriff, by 4 Ann. cap. 16. ^ 20.

§ 20. a judge's certificate for taking and prosecuting a felon to 10 & 11 W.5.

conviction, by 10 & 11 W. 3. cap. 23. § 2. a bankrupt's effects c. 25. §.2.

by the several statutes of bankruptcy. 1| Replevin bonds by lUi^-2- i^'iS-U

II Geo. 2. c. 19. 11

ASSISE. i

A N {d) assise is a remedy which the law hath appointed for the (rfl For the de-
"^ restitution of a freehold, of which the party has been dis- rivation and
seised, and appears to have been in nature of a commission to tife"^ord°CT'^^
put the disseisee in possession by trial at one assises. Co.Litt.iW.b.

154. b. 159. b. It seems to have been of Norman extraction, vide Customier, 16., and to have
been introduced in the reign of H. 2. as a more easy and expeditious method of recovering the
freehold than was observed in the writ of entry ; hence the writ of entry was afterwards called
a writ of entry in the nature of an assise. Vide Fleta, 214, 215. Glanvd says it was regale
quoddam benejiciuin dementia principis de concilia procerum populis indidtuvi. Glanvil, c. 7.
lol. 17. IJSee Roscoe on Real Actions, 6l.||

Assises are now seldom made use of except for the recovery of
offices, being supplied by other actions less perplexed, and
which yield a more expeditious remedy ; but as they are still in
force, it may be proper to consider the nature of them a little,
under the following heads :

(A) Of the Nature of an Assise, and the Form of the
Proceedings on it.

(B) In

3S2

ASSISE.

(B) In what Cases an Assise lies.

(D) How the Demandant must set forth his Title,

F.N.B.177.
Fleta, lib. 4.
c. 4. f. 222.
(a) For assises
in confinU) co-
viitatus, vide
Co. Litt. 1 53,
154. 7 Co. 5.
b. 7R.2. c.lO.
Keilw. 98.
Booth, 211.

(A) Of the Nature of an Assise, and the Form of tlie
Proceedings on it.

A SSISES are twofold, (a) First, an assise of a man's own
possession, and that was called an assise of 7iovel disseisin,
which was a commission to the sheriff to reserve the tenements
with the chattels found in them, and put them in peace till a jury
had tried the cause, who were by such writ authorized to be re-
turned at the assizes by the sheriff; and by the original practice
in this assise, the sheriff used to take the tenements, together
with the chattels found in them, into his own possession, till the
right was tried ; but because this proved inconvenient, for that
the sheriff could not keep such possession, and turn it to the best
advantage, especially where such an assise was long in de-
pendence, therefore the practice altered, and the tenant was con-
tinued in possession until judgment; and by such writ the jury
were empowered to enquire of damages, because the sheriff was
to reseise the chattels as well as the frank-tenement ; and there-
fore such damages being assessed by the jury were awarded to
the tenant that recovered, as well as the frank- tenement.

The second sort of assise is an assise of mortdancestor, which
was, where the father, mother, brother, sister, uncle, aunt,
nephew, or niece died seised of the lands, and a stranger abated ;
then the heir had such writ, and to such writ was required an
Immediate descent, as from father to son, or from brother to
sister originally ; and it seems by the statute of Gloucester, c. 6.
it extended to uncles and aunts, nephews and nieces, because
abatements had frequently happened upon the death of such re-
lations ; but the more remote relations were left to pursue their
writ of entry as at common law.
For the form The first process in this action is an original writ issuing out

°w R *'^'iQ7 ^^ Chancery, directed to the sheriff, commanding him to return
Plow. 75.415. ^ Ju^T (who are called the recognitors of the assise).
F.N. B. 178. Booth, 210. 267. The demandant is to find surety to prosecute, and this he
may do before the sheriff^ or in court, if the sheriff returns that he hath not found pledges.
Booth, 267.

F.N. B. 117. Assises are to be taken in the King's Bench, or Common Pleas

Booth, 265. for the county in which they sit, and for all others are to be
{b) By Magna arraigned in their proper counties (6), but are to be adjourned
Charta,c.\2. f^j. difficulty into the Common Pleas, as the court which has
assises are ap- • • j- . < i, . ., .
pointed to be jurisdiction m all civil actions.

taken in propria comitatu ; thereupon an adjournment in banco, propter difficiUtalem, &c. is
given; but it was held no adjournment could be made by virtue of this act, unless the jurors
gave a verdict ; whereupon by Westm.2. c. 3. an adjournment is given in case of a foreign

voucher

F. N.B.I 95.
2 Inst. 508.
Booth, 206.

(A) Assise, and the Form of Proceedings on it. 333

voucher i« an assise of mortdancestor, within the equity of which are all foreign pleas, demur-
rers, and other pleas and proceedings, either before or after verdict in an assise. 2 Inst. 2C.
425. Fu/e Roll. Abr. 131.

An assise is festinum remedium (a), and to be arraigned on the HtyleRe". 88.
day the writ is returnable (Z>), on which day the demandant is to («) It is called
count (c), and the tenant (d) is to appear and plead instantly (e), Fcsiinum re-
tinless the court thinks proper to allow him an imparlance, which ^^^ ""'V ^*, '
it is said cannot be without shewing good cause. nant shall not

be assoined. 2. Shall not cast a protection. 3. Shall not pray in aid of the king. 4. Shall
not vouch any stranger except he be present, and will enter presently into warranty ; so of
receipt. 5 The parol shall not demur for the nonage of the plaintiff or defendant. 8 Co, 50,
Booth, 262. For the manner of arraigning an assise, vide 5 Mod. 273. Keb. 3. Comb. 173.
(b) But where neither the recognitors nor plaintiff appeared on the first day, the court
acljourned the assise to the next. Salk. 82. pi. 1. (c) Otherwise he will be nonsuit. Jd. ibid,
(d) If there be several defendants, and any one of them do not appear the first day, the assise
shall be taken by default against them. Salk. 85. (e) That the defendant may pray oi/er of the
writ and count, vide 2 Bulst. 160. and shall have an imparlance to a short day. Style's Reg. 88.,
But it must be on shewing good cause. Salk. 83. pi. 2.

When the plaintiff counts the defendant may plead in abate- Booth, 214.
ment (^), and over in bar (/?), or may take the general issue ^f ^ ^. ^"
nul tort nul disseisin. peremptory

though found against him. Firfe Finch of Law, 385. Dyer, 310. Jones, 413. Cro. Car. 520.
(Ji) Must plead over in bar at the same time that he pleads in abatement. Salk, 85. pi. 2.

If the tenant pleads a plea, which shews that the assise should Booth, sis,
not be taken, and such plea is triable by a jury, the recognitors ^^*'
of the assise may try it, and then the assise is said transire inju-
rata., and the assise and record adjourned into the Common
Pleas.

If a flat bar be pleaded to the assise, and issue is joined there- Booth, 214.
upon, the jury never enquire of the seisin or disseisin, but of the
matter pleaded in bar, and of damages if the plea be found
against the defendant.

But if the defendant pleads a colourable plea, then they are Vide Bootb,
to enquire of the seisin and disseisin, which is called the taking 214,21s. And
the assise at large. XltZlf""

head of Pleas and Pleadings ; and where the assise may or may not be taken at large. 10 Co.
90. Finch of Law, 416, Roll. Abr, 271 — 275.

Also if an infant pleads a flat bar, and the bar is found against Roll. Abr. 275.
him, yet the assise shall be taken at large, because the law not
allowing the parol to demur in this action, which was Jestitium
remedium, the seisin and disseisin was enquired of, that the in-
fant's whole title might appear before the court.

By Westm. 2. c. 25. a certificate of assise is given, which is a Vide Booth,
writ for the party grieved by a verdict or judgment given against ^^^' ^^^*
him in an assise, when he had something to plead, as a record g jj^*^j ^ *
or release, which could not have been pleaded by his baily ; or
when the assise was taken against himself by default to have the
deed tried, and the record brought in before the justices, and the
foiTOer jury summoned to appear before them at a certain day
and place, for a further examination and trial of the matter.

(B)In

334, ASSISE.

(B) In what Cases an Assise lies.

2 Inst, 412. AN assise lies for any thing a pracipe quod reddat may

8 Co. 47. b. -^^ i)g brought for at common law, therefore it lies for an
(a) An assise «> , .
lies for the °^"^^- (^^

office of registrar of the Admiralty ; for though their proceeding are according to the civil law,
yet the right of their offices is determinable at the common law. 8 Co. 47. 2 Inst. 412. S. P.
Of the mastership of an hospital, being a lay fee. 1 1 Co. 99. b. Of the office of filazer.
Dyer, 114. b. And if a man be disseised of parcel of the profits of an office he may have an
assise of that parcel only. 8 Co. 49. b. 2 Inst. 412. S. P. But for an office of charge and
no profit an assise does not lie. 8 Co. 47. b. 49. b. 2 Inst. 412. S. P. (See however /70i/(D), 354.)
An assise lies for an office for life as well as in fee. 8 Co. 47. a. HAssumpsit for money had,
&c. is now the common action for tr)'ing the right to an office, but it only lies for regular fees,
and not for a mere gratuity given to the officer. Boyter v. Dodsworth, 6 Term R. 681.1|

(*) Does not It lies for one seised of lands, tenements (Z»), rents in fee-simple,

lie of an an-^ tail, or for life, and for tenant by elegit {c), statute-merchant,
2 " Booth 265. staple, or tenant by recognizance in nature of a statute-staple.
8 Co. 50. (c) By the statute of 13 E. 1. c. 18. which see explained, 2 Inst. 596.
Vide Co. Litt. It lies of tythes, pensions, and other ecclesiastical duties in
159. 32 H. 8. temporal hands; but of a rent issuing out of tythes barely, no
204.' f^df ' assise lies.
Danv, 578, 579.

2 Inst. 411. There were at first but two forms of wiits of assise of novel

(d) So at this disseisin, either an assise de libero tenemento (d), or de communia
dsLV tor a profit , / \

apprender the P^Stura. (e)

writ must be general de libero tenemento, and the plaint special. 8 Co. 47. Co. Litt. 159.
Because no special writ is given by the statute. Dyer, 85. (e) In ancient time they held
themselves strictly to the forms in the register ; and therefore because there was no writ of
common of turbary, &c. it was held no assise lay thereof. 8 Co. 48. a. b. jjlf a common has
been enclosed and enjoyed in severalty for twenty years, the entry of the commoner is barred,
and he is driven to his assise of common. Hawke v. Bacon. Creach v. Wilmot, 2 Taunt.
159.11

2 Inst. 411. The assise de libero /^w««e«to did lie of houses, land, rent,

b th 't"t*t ^^ other things which lay in render, but for profits appreiidei;
of Westm. 2. which consisted in capiendo, collige7ido, habendo, recipiendo et
C.25. a. speedy exercendo [g\ no assise lay, but a quod permittat, in which there
remedy is was great delay, and they who had but an estate for life could
given in these ^^, ^i^^^i^ .^at writ. ^
cases de profi-

cms, SfC. in cer o loco capiend., S^c. An assise does not lie of a way over certain land, but a
quod permittat, for it is but an easement ; but otherwise if it were appurtenant to land.
8 Co. 46. 34 Ass. 13. For an assise a sovent distress, vide Keilw. 20. 2 Inst. 413, 414.
F.N. B. 178.

Vide 2 Roll. A S the writ of assise restores the party to the actual seisin of
Abr. 463. •^*- bis freehold, for so are the words of the writ, facias tene-
mentum illud seisiri, Sfc. consequently the party that brings this
writ must found it upon an actual seisin, which he has been
divested of, for otherwise this remedy is not commensurate to his
case.
Lit. §565. Co. Therefore if there be lord and tenant by rent-service, and the

lord

(D) How the Demandant must set forth his Title, 335

lord grants the services to another, and the tenant attorns by a Lit. 515.

}>enny, this being given by way of attornment, is not sufficient iCo.9. loCo.

seisin to ground an assise on ; seciis if the penny had been given

by way of seisin of the rent.

If the lessor dies, and after the lessee for (a) years is ousted VideRoW.Abr.

the heir of the lessor shall have an assise of novel disseisin, and 270, 271.

not of mortdancestor, for the lessee's continuing in possession ,^^\ ^ ^°' ^

n 1 1 1 ,. 1 1 • • 1 p 1 ^ • («) " tenant at

alter the death ot the lessor, was in right or the heir. ^,11 be ousted,

the lessor may have an assise. 21 E. 3. 34.

If a man leases for years, the remainder over in fee, and Kelw. 109.
after the tenant for years is ousted of his term, he in the re-
mainder may have an assise, because the freehold was in him at
the time of the disseisin.

The taking of threepence of A. for a capias against B. is a Roll. Abr. 270.
sufficient seisin of the office of filazer de banco.

If one be committed by the House of Commons to A., who 2 Lev. 108.
before and long after was in possession of the office of serjeant at S^^^^,?"
arms to the house, and the prisoner compounds with B. for the
fees, and gives him twenty shillings, this is a good seisin of the
office byi?., for he cannot be disseised thereof but at his election;
adjudged, and held likewise, that proving that B. being in the
lobby of the House of Commons, took hold of the door of the
house, and laid his hands upon the mace, then being in the
hands of A., to take it, but hindered by A., was good evidence
both of a seisin and disseisin.

The Serjeant of the mace to the House of Commons in an Lev. 108.
action upon the case for a disturbance, recovered damages ; and (*) I^ » tenant
whether this was a sufficient seisin, the damages being recovered '"^l"^^^ ^'^ ^^

J.' r- • c ^ r /7\ i i i i -^ ,' • SUlt of COUrt,

m satisiaction or the tees (6), and he then being out or possession ^pj tj,g jo^j •
of his office, was doubted ; some of the judges inclining one way, recovers da-
and some the other ; and it was intended to have been found mages against
specially ; but the plaintiff, being unwilling to stand to it, was sufficient sd^in
nonsuited, of the^suit! be-

cause the damages are given as an equivalent, and in satisfaction for the suit. 4 Co. 9. b.
So if a return irreplevisable be awarded, that is a good seisin of the rent for which the distress
was taken ; because such return is an absolute condemnation of the pledges ; and being given
as an equivalent for the rent, shall be looked upon as the rent itself. 4 Co. 9. b. 2 Roll.
Abr. 464.

(D) How the Demandant must set forth his Title.

TT is a common learning, that in an assise the plaint (c) need not Dyer, 84.

be so certain as in other writs (d), because the judgment is (c) The plaint
to recover per visuin recognilorum [e) ; and if the plaint be but so '" »" assise is
certain {g) that the recognitors may put the demandant in pos- odfer red ac-
session, it is sufficient. tions,andmuIt

set forth seisin and disseisin within fifty yeai's, pursuant to the statute 32 H. 8. c. 2. Booth,
212. {d) Stile, 30. Like point j)er Rolle C. J. {e) So though by default, and the damages
released; for by intendment they had the view before the assises. 2 Bulstr. 159. Godb. 247.
Cro. Jac. 334. {g) But a plaint de una tcnemento is not good. Stile, 77. It is uncertain,
being a genus). But in an assise the plaint may be de annuo redditu unius robte vel 20s.
Dyer, S4.

336 ASSUMPSIT.

Jenk. 53. By In an assise of rent in Z)., the tenant cannot plead that in the
all the judges said county there are two D.'s {a% without any addition to dis-
oi England. tinguish theiTi, because the plaintiff shall recover pei' visum jura'

(a) So if two ^ ^ jr J

m, and none ^'^^'«-

without addition, 7><?r Dyer, 84. b.

8 Co. 49. In an assise for an office newly erected and constituted, the

Webb's case, demandant in his plea must shew what fee or profit is granted

for the exercise thereof; for this office cannot have a fee or

profit appurtenant to it, as an ancient office may ; and for an

office without fee or profit no assise lies.
8 Co. 49. But in an assise for an ancient office, the demandant in his

plaint need not shew what fee or profit is belonging to it ; for it

shall be intended there is some fee or profit.
Jenk. 43. In an assise for a rent -charge or seek, the demandant must

(A) Dyer, 85. make a title in his plaint {h) ; otherwise in an assise of land, for
56 S P ^1 Sid ^^^^ possession, without any other title, is sufficient, (c)
203. (c) Where in a writ of entry in nature of an assise, the demandant counted of a gift in
tail to himself, and of his seisin and disseisin ; but was compelled to declare upon a seisin and
disseisin only, because that was the ancient form. Vide 2 Ander. 100.

Dyer, 83. ad- In an assise for a portion of ty thes, the demandant in his plaint
judged. must make a title, for the seisin only is not sufficient, no more

than in the case of a rent, or other profit in the soil or fee of
another, which commences against common right ; for in all these
cases of necessity the commencement thereof must be alleged by
him who will make title thereto, whether he be privy or a
stranger ; for it is against reason to charge the inheritance or
freehold of another, without shewing some substantial foundation
thereof.
.,\it A ^»^ In assise for an office, the demandant in his plaint must set

3 Mod. 373. /. 1 • I

Savier and *orth a title.

Lenthal ; by which book it appears, that the demandant not being ready to set forth a title,
the assise was adjourned till the next day, when he appeared and set forth a title, and process
was prayed against the defendants ; but by Salk. 82. S. C. the demandant was nonsuited the
second day for not counting; and the court told him he might bring a new assise. Comb. 173.
S.C. and the plaintiff nonsuited. Vide Dyer, 114. pi. Q5. 149. pi. 81. 152. pi. 9. 8 Co. 45. b.
See 10 Mod. 125.

ASSUMPSIT.

8 Co. 92. A N assumpsit is an action the law gives a party injured, by the

Moor, 667. breach or nonperformance of a contract legally entered

[The rise and into : it is founded on a contract, either express, or implied by
this^Dc^ies of ^^^» ^^^ gives the party damages in proportion to the loss he
action is very ^^ sustained by the violation of the contract,
accurately traced in the third and last volumes of Mr. Reeve*' Hist, of the Law.]

But

(A) In what Cases Assumpsit is the proper Action, 337

But here it must be observed, that the law distinguishes Salk. 23.

between a general indebitatus assumpsit and a special assumpsit j 6 Mod. 128.

for thoufjh they come under the denomination of actions on the K'') /here is

I ^i "^ . ' ^ \ 1-1 ,., . no loundation

case, and the party is to be recompensed m damages alike m fo,. j^js propo-

both ; yet the first seems to be of a superior nature, and will lie sition. It is
in no case but where debt will lie (a); but for a particular under- much more
taking, or collateral promise to discharge the debt or duty of P'^^^'bie t''
' another, a special assumpsit must be brought. where debt

lies an action on the case ought not to be brought." And that was the point relied upon in
Slade's case, 4 Co. 92. ; but the rule then settled and followed ever since is, " that an action
of asiiimpsit will lie in many cases where debt lies, and in many where it does not lie. Per
Ld. Mansfield, 2 Burr. 1008.] IJDebt does not lie against an executor on a simple contract of
the testator, except in the Exchequer, but assumpsit lies in such case ; see Barry v. Robinson,
1 New R. 293. The objection, however, to an action of debt can only be taken on demurrer,
5 Taunt. 665. 1 Marsh. 280. ; and see 1 Will. Saund. 216. b. nolis. And where some of several
instalments of a debt are due, it seems assumpsit lies though not debt. Rudder v. Price,
I H. Black. 547. ; and see 2 Bos. & Pull. 429.||

Under this Head we will consider,

(A) In what Cases an Assumpsit is the proper Action.

(B) What Words create sufficient Certainty in a Pro-

mise.

Assumpsit.

(D) Where the Consideration shall be said to be exe-

cuted or continuing.

(E) Where the Promise shall be void, the Consider-

ation being against Law.

(F) Where the Consideration and Promise shall be

said to be sufficiently set forth and averred.

(G) What may be pleaded as a good Discharge and

Performance of the Promise.

(A) In what Cases an Assumpsit is the proper Action.

TF ^. a^id Z?., having dealings with each other, make up their Cro. Jac. 69.

accounts, and B. is found in arrear, and promises to pay the Yelv. 70. S.P.
balance, an assumpsit lies against him, and A. need not bring a g ''• ^'^' '^•
writ of account. (6) Rep.' 396. '

Moor, 854. 3 Black. Com. 162. \\{b) In Com. Dig. Action upon the Case upon Assuinj)sit
(A) 1. it is laid down that assumpsit lies wherever an account would lie, and the case of
Wilkin V. Wilkin, 1 Salk. 9. Carth. 89. Show. 71. Comb. 149. is referred to. This was
an action for not accounting for goods delivered by the plaintiff' to the defendant for sale,
and the cicfendant pleaded in abatement that he was the plaintiff''s bailiff' for sale of the
goods, and therefore that the plaintiff" ought to have brought account against him, — but the
plea was held bad and judgment was given for the plaintiff", though, according to the reports

Vol. I. Z in

338 ASSUMPSIT.

in Carthew, Shower, and Comberbach, Holt C. J. appears to have doubted whether cutumpxil
ought to be brought by reason of the inconvenience of submitting long accounts to the jury ;
and Chief Baron Gilbert, Law Evid. 192. expressly says, " On indebitatus no evidence can
be civen of an account current, because such examination would be too tedious on issues,"
and this was so held by the B.R. 25 Car. 2. in Lincoln v. Parr, 2 Keb. R. 781. And in
a modern nisi prius case, Scott v. Mackintosh, 2 Campb. 258, where the account had been
running several years, and consisted of several thousand items, Lord Ellenborough held that
account was the proper remedy, and the defendant refusing a reference, the plaintiff was non-
suited. However, in a subsequent case, Tomkins v. Wiltshire, 5 Taunt. 431. 1 Marsh. 115.,
the Court of Common Pleas held that assumpsit lies for the balance of an account however
numerous the items, and Gibbs C. J. said, " the use of the action of account was where the
" plaintiff wanted an account and could not give evidence of his demand without it." And
in Arnold v. Webb, 5 Taunt. 432. note (a), Dampier J. held the same opinion at Nisi Prii«.||

Salk. 9. pi. 9. So, if A. gives money (a), or delivers goods to B. to merchan-
(a) Where it jjgg therewith, and B. promises to render an account, assumpsit
that asum^of ^^^^ ^^ '^^^ express promise, as well as account,
money given to merchandise with, could not be demanded of the party as a duty till he had
neglected or refused to apply it according to the trust, held, that it was aided after verdict.
Salk. 9. pi. 2. ||But the action does not lie in sucli case until demand made, and the statute of
limitations only runs from the demand, though after a long period has elapsed a demand may
be presumed. Topham v. Braddick, 1 Taunt. 572.1| If a man receives a sum of money to lay
out to a particular use, and lays out part of it accordingly, an action of account only lies ; but
if no part of it is laid out, an assumpsit lies, 2 Show. 301. p!.304. Ruled on evidence by
Justice Jones, in the absence of the Chief Justice. Vide head of Account.

Roll. Abr. 9. So if a tenant, being in arrear for rent, settles an account

Bro. Account, of the arrears with his landlord, and promises to pay him the
^Keb^Ts"^^ sum in which he is found in arrear, an assumpsit lies on this
r2rfeStyie,i3i. promise.

283. Cro. Jac. 602. A diversity where the account was for rent alone, and where for that
inter alia ; and vide Allen, 7-3. Style, 47.3. 2 Lev. 110. Vent. 268. where it is said, that the
account alters the nature of the debt.

Roll. Abr. 8. But if the obligor in a bond, without any new consideration,

Hiitt, 34. Cro. as forbearance, S,-c. promises to pay the money, an assumpsit will
seems m'ntrii "°^ ^^^' ^"^ ^^^ obligee must still pursue his remedy by action of
[(i) Wherever debt. (Z*)

a man resorts to a higher security, the law will not raise an assumpsit. Toussaint v. Martin-
nant, 2 Term R. lOO. So a promise by a defendant to pay a judgment debt obtained against
him, in consideration that the plaintiff would stay execution thereon, is no ground for an
assumpsit, for it is turning a judgment debt into a debt upon simple contract. But the pro-
mise would be sufficient if made by a third person. Anon. Cowp. 129. HThe assignee of a
Scotch bond may sue in assumpsit on it against the obligor. Innes v. Dunlop, 8 Term R. 595.||
Assumpsit may be maintained on an express promise to pay the balance found due on the settle-
ment of accounts upon the dissolution of a partnership, notwithstanding a covenant in the
articles of copartnership to account and pay the balance, and that notwithstanding most of
the items in such settlement relate to partnership transactions. Foster v. AUanson, 2 Term R.
479. Moravia v. Levy, Ibid. 485, notes. |!But where the master of the plaintiff's vessel as
their agent entered into a charter-party under seal with the defendant, which stipulated for
delivery of certain goods to the house in which defendant was a partner, at a certain freight.
It was held that the plaintiffs on delivery of the goods could not sue the defendant in assumpsit
for the freight, since their remedy was on the charter-party. Shack v. Anthony, 1 Maule &
S. 573. ; and see Randall v. Lynch, 12 East, 1 7^. Where, however, the plaintiffs by charter-
party agreed to let a vessel to the defendants for a certain voyage for eight months, to com-
mence from her sailing from Gravescnd, and covenanted that she should proceed to any port
m the Channel to take in goods, and afterwards it was agreed by parol that she should load in
the Thames, and that the freight should commence from her clearing outwards at the custom-
house, it was held, that the freight from her clearing till her sailing from Gravesend might be
recovered in assumpsit^ since the pai-ol contract was distinct from the charter-party, and to be
performed anterior to it in time. White v. Parkin, 12 East, 578. Where the wife entered
into a contract under seal without any authority from her husband, hiring the plaintiff as her

servant

(A) In what Cases Assumpsit is the proper Action. 339

servant on a voyage, and stipulating to pay her passage home to England, it was held, that as
the deed did not bind the husband he might be sued by the plaintiff in assumpsit for the
passage money. White v. Cuyler, 6 Term R. 176.11 And the mere taking of a pledge by
the lender of money for his security, will not preclude him from resorting to an assumpsit ; for,
to discharge the person of the borrower, there must be a special agreement to stand to the
pledge only. South Sea Company v. Duncomb, 2 Stra. 919. Where the obligor of a respon-
dentia bond by indorsement thereon agreed to pay it to any assignee, it was determined that
the assignee might maintain a general assumpsit for it. Fenner v. Meares, 2 Black. R. 1269.]
l|See Lord Kent/on's observations questioning this decision, 1 East, 104,, which was also
doubted by Lord Ellenboroiigh^ see 14 East, 587, notd.'^

So if a man leases for years, reserving rent, an assumpsit will p ,, .,
not lie, because it savours of the reality. g^ thoutrh the

lease be determined. Roll. Abr. 7. Qu- If there be an express promise to pay the rent ? and
vide Cro. Car. 343. Style, 463. Sid. 279. 2 Keb. 8. Lev. 179. and 3 Lev. 150. where it
is resolved, that on an express promise (where there is no deed executed under seal) assumpsit
will lie, but not on a promise in law. Vide Roll. Abr. 8., where it is held clearly, that an
assumj)sit will lie on a promise to pay a sum in gross. [Where the demise is not by deed, the
landlord is empowered by stat. 11 G. 2. c. 19. § 14. * to bring the action for the use and occu-
pation ; and if in evidence on the trial, any parol demise, or any agreement (not being by
deed) whereon a certain rent was reserved, shall appear, the plaintiff shall not, therefore, be
nonsuited, but may make use thereof as an evidence of the quantum of damages to be
recovered. Before the above statute was passed, it was holden that this action was maintain-
able for use and occupation, where there was no stipulation for any express rent. Mason v.
Welland. Skin. 238. 242. S. C. in 3 Mod. 73. by the name of Mason v. Beldhara. It seems,
from the argument, though not directly stated by the reporters, that there was a demise by
deed in this case, but no particular rent reserved.] IJSee tit. Rent (K), 7. Vol. VII.|1

• This statute seems to have escaped the recollection of the late Vinerian professor, in his
comment on this species of action. See 3 Wooddes. 152, 153.

1^ A. is possessed of a term for years in certain lands, under a Leon. 43.
certain rent, the inheritance whereof is in the wife of B., and
C, in consideration that B. will procure A. to assign this lease
to him, assumes and promises that he will pay the rent to B,
during the remainder of the said term ; if B. accordingly does
procure A. to assign, and the rent is afterwards arrear, B. upon
this promise may have an action against C. in his own right, not-
withstanding the rent grew due in the right of his wife.

If in an action on the case the plaintiffdeclares quodlocasset to Cro.Jac. 598.
the defendant a certain warehouse, the defendant promised to
pay Ss. for every week he occupied the same, and avers that he
occupied the same for twenty-seven weeks, and had not paid, Sfc.
the action lies, for this is not a rent, but a mere promise in con-
sideration of the occupation.

If a lord of a manor assesses a fine upon a copyholder for his sLev. 26i.
admittance, and dies, his executor upon the assumpsit in law may ^^^ Qa)!!^er
bring an action for it, because it depends not upon the inherit- 5 jyioj^ 239'.
ance, but is quasi a fruit fallen ; adjudged by three judges against S. C. 1 Show.
Holt C. J., who said, that it being a duty arising out of an in- ?5. S.C.
heritance, custom and tenure, it was not fit to be thrust into a pEvelvnv Cwl
declaration in an assumpsit. chester,

3 Burr. 1717. Whitfield v. Hunt, B.R. Hil. 24 G. 3. Dougl. 727., in not.] llSee 3 Bos. &
Pull. 346.11

An indebitatus assumpsit (a) lies for money due by custom for 2 Lev. 174.
scavage; adjudged upon a s})ecial verdict, by which it was found. Mayor of Lon,

Z 2 that

340 ASSUMPSIT.

don and Gory, that the sum demanded was due by custom, but that there was
Carth.92.S.C. j^q express promise to pay it,
cited as good

law, though the duty might be said to be the inheritance of the lord mayor : but per Holt, it
arises out of things in the personalty. Vent. 398. S. C. adjudged ; though objected, the cus-
toms of the city are confirmed by parliament, and so this is a duty by record. An assignee of
commissioners of "bankrupts may bring an assumpsit, and yet the debt is assigned by virtue of
an act of parliament. Vent. 298. per Cur. 5 Keb. 677. [(a) That it will lie for tolls, see
Mayor of Exeter v. Trinilet, sWils, 95. Seward v. Baker, 1 Term R. 616. adjudged in the
last case on a special demurrer.] IJSce 4 Maule & S. 288. Mayor of Reading v. Clarke,
4 Barn, i^ A. 268,; and indebitatus assuvipsit will lie for chattels. Falmouth v. Penrose,
6 Barn. & C. 585.||

„ „ rAn action of assumpsit is maintainable, where the demand

•Rann V. Green, • i • ^ c \v • .. i. r i-

Cown 474. arises by virtue ot a public or private act or parliament.

liougl. 402. arguend. Bell v. Burrows, C. B. E. 5 G. 5. Bull. Ni. Pri. 129. ||See 5 Term R.
130.11

Brown v. Bui- An indebitatus assuvipsit lies against the assignees of a bank"
'*^"' ^?irf' ^^P^ ^°^ " creditor's share under an order of the commissioners
now by 6 G. 4. for a dividend.]

c. 10. § 111. no action shall be brought against assignees for a dividend, but the Chancellor
may upon petition order payment with interest and costs.||

Emerson v. ||A.n indebitatus assumpsit does not lie (nor indeed any action)

s H bI' k ^° recover costs orderecf to be paid by an interlocutory order of

248." * an inferior court, although the defendant may not be liable to

an attachment in the inferior court for not paying them ; for no

general duty arises from such order, which is subject entirely

to the control of the court making it.

Smith v.Whal- But if parties bind themselves by agreement to obey the orders

ley, 2 Bos. & ^^f ^ court, an action o^ assumpsit lies on such ajjreement. 11

Pull. 482. ^ & II

Crawford v. [An indebitatus assumpsit may also be maintained on the judg-

Whittal, ment of a foreign court, without stating the original cause of

Dougl. 4. in action.]
not. II 1 Camp.
253. 2 Camp. >502.||

Buchanan v. ||But not on a judgment by default in a court in one of the

S^^^o'^'^''^^^'^ colonies, where it appears on the face of the proceedings that
K. 192. Lavan ^iifi ^"^i ,, -i. ri_

V. Stewart ^"® deiendant was only summoned by nailing a copy or the

1 Stark. R. declaration on the court-house door, it not appearing that the

525. defendant had ever been present within the jurisdiction of the

court.

Harris v. it is now settled that assumpsit lies on a judgment of the

Saunders, superior courts of Ireland^ since, notwithstanding the union of

4 B^arn. & ^^ ^^^ kingdoms, such judgment has not the force and effect of

and see 5 East, ^ record in England. \

473. 3 Taunt. 85.

Debray V. \_Debray, an officer, drew a bill on the agent of a regiment

after^oUr^ payable out of the first money which should become due to him,
4 G. 3. cited' on account of arrears or non-effective money. The agent did not
in TermR. accept the bill, but marked it in his book, and promised to pay
^'^^- when effects came to hand. Debray dying before the bill was

paid, his administratrix was allowed to maintain an action for
money had and received against the agent. Lord Mansfield con-
sidering

(A) In what Cases Assumpsit is the proper Action. 341

sidering it as an assignment for valuable consideration with notice
to the defendant.

An indebitatus assumpsit will not lie for money lent to a third ]vf,^rriot
person at the request of the defendant.] Lister, 2 Wils.

141. Butcher v. Andrews, l Sulk. 23,

If a man by grant of the king hath fines 1)^0 licentia concor- 2 Leon. 179.
dandi, and one will not pay a fine, he may have an indebitatus %^^^^: ^'^f-
assiimpsit for it. ^' "''''^•

Neither debt nor a general ijidebitatus assumpsit will lie against Hard. 485,
the acceptor of a bill of exchange, for his enffaging is but a col- tr^; ^^^P^''
lateral promise, on which a special action on the case lies, ^ ^^ indehi-
founded on the custom of merchants (a) : but debt on a gene- tatmyi ouXdWe.
ral indebitatus may be brought against the drawer {b), as for Browne v.
money received for the use of the party. i" M*^T'

\ Ventr. 152. S. C. 1 Freem. 14. S. C. 1 Lev. 298. S. C. 2 Keb. 695. 715. 758, 822. S. C.
Hard's case, Salk. 25. S, P. agreed. 2 Lutw. 1594. S. P. agreed, ^{a) But it is now settled
that debt will lie by the drawer of a bill against the acceptor where the bill is payable to the
drawer, or his order, and accepted for value received. Priddy v. Henbrey, 1 Barn. & C. 674. ;
and so by the payee of a note against the maker for value received. Bishop v. Young, 2 Bos.
& Pull. 78.|| [{b) Hodges v. Steward, Salk. 125. 12 Mod. 347. S.C. Skin. 346. Morg. Prec.
548. a declaration by administratrix of payee against drawer of a promissory note. So Ld.
Mansfield held, that it may be brought by an indorsee against the person who indorsed it to
him. Kissebower v. Tims, B.R. E. 22 G. 3. Bailey, 47-]

Also if ^. delivers money to B. to pay over to C, and gives ggg 5 Term R.
C. a bill of exchange drawn upon i?., and B. accepts it, C. may i82. Vent. 153.
have an indebitatus assumpsit against B. as having received W) So if goods
money to his use (c), but must not declare only on the bill of o^f^^u'^^^o
exchange accepted, {d) vlleiit. ^Mcr-

chant and Merchandize. | [(of) This last point is not supported by the case Vent. 155., and
there is no reason why C. in such case should not declare on the acceptance alone.||

\_A. being indebted to B. for brokage, and B. indebted to C. Israel v. Dou-
for money lent, B. gives an order to A. to pay C. the money due f^^''? ^'^
from A. to B. (the order not expressing how much, the quantum
being then unascertained) ; whereupon C. lends B. a further
sum ; the order was afterwards accepted by A. It was holden by
Lord Loughborough C. J., Gould and Heath J., Wilson J. dis-
sentiente^ that C. might maintain an action for money had and
received to his use against A. : but the whole court concurred
in thinking that an action could be maintained on the insimul
computasset. ]

II So also where the bankers at whose shop a bill was accepted De Bemalcs v.

payable, received from the acceptor the amount, in order to take Fuller,i4East,

up the bill, it was held that this money was money had and re- •^^°- "°^^.^,'*)-J
„ • 1 . A £• I 1 1 1 1 / . 1 • I ^ r ••. • and see Kilsby

ceived to the use of the holder, and that he might sue tor it in y Williams,

assumpsit against the banker. 5 Barn. & A.

815.

So also where the defendants were indebted to T. and Co., Wilson v.
and T. and Co. were indebted to the plaintiffs, and T. and Co. ^b.';;'„^"^'a
enclosed to the plaintiffs the defendant's account current, with a ggs.
memorandum at foot transferring to the plaintiffs the balance
due from the defendants ; and a correspondence then took place
between the plaintiflls and defendants, which ended in the de-

Z 3 fendants

3i2

ASSUMPSIT.

Williams v.
Everett,
14 East, 582.
Wharton v.
Walker,
4 Barn. &
C. 163.; and
see Yates
▼. Bell, 3 Barn.
& A. 643.
Grant v. Aus-
ten,3 Price, 58.
Scholey v.
Daniel, 2 Bos.
& Pull. 540.

fendants giving the plaintiffs a promissory note for the balance
clue, payable in three months, unless otherwise provided for by
an arrangement with Mr. S. ,• no arrangement having taken
place, and the three months being elapsed, it was held diat the
balance was recoverable by the plaintiffs as money had and re-
ceived to their use.

But if the holder of the money never assents to the appropri-
ation of it to the use of the third party, such party cannot
recover it as money had and received, since there is no privity
between him and the defendant. Thus, where the defendants
had received bills from A. B., with directions to apply the pro-
duce to pay his creditors, and amongst others the plaintiff, on
their producing letters of advice from A. B., and to mark the
sums paid to each creditor on the back of his bill ; and the
plaintiff, before the bills became due, produced to the defendants
his letter of advice, and offered an indemnity if they would in-
dorse one of the bills ; but the defendants refused to do so, or to
act upon the letter, admitting, however, the receipt of it, and
that the plaintiff was the person mentioned: it was held that the
plaintiff could not recover his debt from the defendants as money
received to his use, since, as the defendants had never assented
to the terms of the letter, the money remained the property of
the remitter, and there was no privity between the defendants
and the plaintiff.

And where the defendants, who had received money to
take up a bill, called on the holder for that purpose, but the bill
was not then in their hands, being sent back protested to prior
money to take indorsers, and the defendants having received fresh orders re-
up a bill may fused to pay the bill when afterwards presented ; the court held
be counter- ^j^^{. jj^gy ^g^g jj^^ liable to the holder in an action for money
Whitfield V. ^^^ ^"^ received, since the mere calling to take up the bill did
Savage, 2 Bos. not prevent their making a new appropriation of the money.

& Pull. 277.

Where the creditor has once given an order to his debtor for
payment of his debt to a third party, he caimot afterwards re-
voke the order, if there has been a pledge by the debtor that
he will pay the debt according to the order.

But if the debtor has not given such pledge, nor paid the
y^ '"^^ 2 Bmg. money ^q ^jjg person in whose favour the order is given, nor
passed it to his account, the creditor is in time to revoke the
order, and may himself recover the money from his debtor.

In an action by the holder of the bill against a party having
received money from the acceptor to take it up, any de-
fence may be set up by the defendant which might have been
made by the acceptor if the action were against him.||
Nightinfjal and [An action for money had and received will not lie for stock.]
others v. Devisme, 5 Burr. 2589. 2 Black. R. 684. S. C. JlJones v. Brinley, 1 East R. 1 .jl
Bank*^'^^* l|If a stakeholder receive country bank notes as money, the

13 East 20. winner of the wager may recover the amount in assumpsit for
money had and received, for between these parties the notes are
I treated as money.

Stewart v.
Fry, 7 Taunt.
339. ; and that
a deposit of

Hodgson V,
Anderson,
3 Barn. & C.

842.

Gibson v.

Redshaw v.

Jackson,

1 Camp. 372.

(A) In what Cases Assiimjmt is the proper Action, 343

An insurance broker having received credit in account vv^ith Andrew v.
the underwriter for a loss on a policy, is answerable to the Robinson,
insured for money had and received, though no money is wiikin^son^v
actually received by the broker. || Clay, 6 Taunt.

1 10. See Rapp v. Latham, 2 Barn. & A. 795.

[Where a man has received money for the transfer of stock to Dutch v. War-
be made at a certain day, and fails therein, an action for money ren, i Stra.
had and received will lie against him for the difference-money, ^°^- 2 Burr.

O *^ 1 0 1 1

or damages sustained by not transferring the stock at the limited
time ; but in such action more than the consideration-money
cannot be recovered.

Where money has been paid on a contract to transfer one Anon. 1 Stra.
species of stock, and the party contracting to do so transfers '*'^^*
another species, an action for money had and received will lie to
recover back the whole consideration-money.

An assumpsit is a proper form of action where there has been Stuart v. Wi!-
an express warranty, but a warranty cannot be tried on a count Kins.Dougl.is.
for money had and received only.] Wells Cowp.

818. lilf the contract is rescinded by a return of the goods and acceptance of them by the
vendor, then the money may be recovered back in an action for money had and received :
but if the defendant has not accepted back the goods, or done any thing to rescind the con-
tract, so that he has a right to try the question of warranty and breach, then the declaration
must be special on the warranty. Weston v. Downes, Dougl. 23. Towers v. Barrett, 1 Term
R. 135. Giles V. Edwards, 7 Term R. 181. Hunt v. Silk, 5 East, 449. Payne v. Whale,
7 East, 274. Levy v. Haw, 1 Taunt. 65.1|

The plaintiff declared upon an indebitatus assumpsit for 20Z. quas 3 Lev. lis.

eisolvisse debuisset pro denar. per ipsum ad{b)jocum vocat. chartas j^gg'.^ton and

pictas de defendente per querent, lucrat. et acquisit.; and whether /^^ Where an

such a general indebitatus lay for money won at play, dubitatur, indebitatus was

upon a writ of error in Cam. Scacc. upon a judgment by default; brought for

and though a case was cited wherein in B.R. 32 Car. 2. it had ^^n/°"ll^d*

been adjudged that such action lay, and the greater part of the hazard

justices now inclined to be of that opinion ; yet some of them 2 Vent. 175. it

said, they would give no more encouragement to such actions was adjudged

than needs must. !' ^^y'/*"^ ^''"'

It might as

well as if ^ro opere and labore. Vide Salk.23. and tit. Gaming-.

An indebitatus assumpsit lies for 20/. forfeited by the ordi- 2 Lev. 252*
nances and constitutions of a company, for not serving in the Barber-Sur-
office of steward of the company, according to a bye-law by them jo""^ °d pg""

^^"^* son, adjudged

upon demurrer. i|See 2 Maule & S. £3.||

[It lies by a personal representative for arrears due on a Rex. v. Bishop
composition for small tithes, and for the profits of a donative pf Chester,
before (c), and of a perpetual curacy after the bishop's li- JX^J^'nfJr'e

have been twice augmented, whether the licence be not necessary? Ib» (d) Powell v. Millbank,
1 Term li. 399. n.

If the king grants the office of comptroller of the customs to 2 Mod. 2Co.

Z 4 A. and

S4I. ASSUMPSIT.

acljuilged upon A. and B. durante hcneplacito, and A. dies, and afterwards the
a sfjccial ver- king grants the said office to C., and yet B., under pretence ot'
Vrri T^" survivorship, exercises the said office, and receives the profit
Stnkelv thereof, C. may have an indebitatus assumpsit for so much money

2 Jones, 126, had and received to his use.

127. 2 IjCV. 245. S. p. between Howard and Wood, where the defendant, under pretence of
title, received the fees belonging to the plaintifF, as steward of a court baron. HWhere fees,
are annexed to the office, the action of ossiOH/wi/ for money had and received is a convenient
mode of trying the title to it. And where there are no fees, a quo ivarranto is necessary,

5 East R. 512. And the action will only lie for accustomed fees of office legally due, — not for
mere gratuitous perquisites received by the person usurping the office. Boyter v. Dodsworth,

6 Term R. 68l.|i

2 Mod 26j ^^ ^^ °"^ receives my rent under pretence of title, I may haye

and there said ^^ indebitatus assumpsit against him. (c)

per Cur. tliat wherever an account lies, an indebitatus will lie. [(c) But Qu. Whether, when
the defendant claims the title, an action of assumpsit for the rents received will lie against
him ? Wilson J, in such an action nonsuited the plaintiffj and was of opinion that the mode
of proceeding was either by ejectment ; or in case that could not be brought, by an action
iigainst the tenant for the rent wrongfully paid by him to the person not entitled to it. Cun-
ningham et Ux. V. Lawrents Clk. Worcester Spring Assizes, 1788. iJEut where a tenant had
paid rent to his landlord for several years and was afterwards ejected at suit of a third party,
who also recovered against him mesne profits for the time for which he had paid rent to his
landlord, it was held that he might recover such rent back ac money had and received, the
landlord not setting up any title to the premises. Newsome v. Graham, 10 Barn. Sc C. 2o4.||
An action for money had and received will not lie to recover back money paid for the release
oi cattle damage feasant, though the distress were wrongful ; for various rights and questions
iTiay arise, which the defendant cannot in such an action be prepared to meet or controvert.
Lindon v. Hooper, Cowp. 414.] ||And see 15 East, 314. and Anscomb v. Shore, 1 Camp. 285.
But where a landlord in distraining for rent has not allowed property tax, which he had cove-
nanted to allow, the tenant may recover the amount as money had and received. Graham
V. Tate, 1 Maule & S. 609.; and see Dawson v. Linton, 5 Barn. & A. 521.|i

S:dk.'J7. A. took out administration to a person supposed to have

pl. 14. Jacob died intestate, and appointed J. S. his attorney, who received

'^"''.,^''*=" ^' money, <§r. and paid it to the administrator ; afterwards a will
Guildhall. • 1, ^1.. . 11 1- 1

coram Trevor ^PP^^^'^^gi the letters of administration were called m, and

C. J. [See '■he executor brought an indebitatus assumpsit against the attor-
contra. Pond ney; who objected, 1. that he acting only as attorney for him,
2 L^rlr^^"'^''' ^^^^ "^ ^^^^ ^^^^ administrator, the receipt of the money was not
1210.1 ^ijAnd ^^^' ^"^ ^^^ administrator's ; and 2dly, that the action ouglit to
see Sadler ^^^^e been a special assumpsit, the money being received by spe-
v. Evans, cial authority, and that expressly to the use of another. But

p^"'!p^-^^^' ^^^ court held, that the authority being void, it was a receipt of
luKfA're'n"'^ ^° much money for the use of the plaintifF on an implied con-
306.11 ^ [And tract, for which an indebitatus assumpsit well lies,
where money i^ paid to a known agent, the action to recover it back ought to be against the
principal, unless indeed it has been paid vudu fide, or under notice. Lady Windsor's case,
4 Burr. 1984. It will not lie against a revenue officer for an over-payment after he has paid it
over. Whitbread v. Brookshank, Cowp. 69. Greenway v. Hard, 4 Term R. 55o:\ JlBut this
case was decided partly on the want of notice of action to which the officer was entitled ; and
It has been since decided that if the money is paid to a bailiff' who had exceeded his autho-
rity, under terror of a distress, and not for the express purpose of being paid over to his prin-
cipal, the officer is liable to an action for money had and received, even after he has paid
it oyer. Snowdon v. Davis, 1 Taunt. Z5Q. And so it would seem wherever the money is
obtained corruptly and illegally. Miller v. Aris, 1 Selw. Ni. Pri. 103. Townson v. Wilson,
1 Camp. 396.|| [In the case of Campbell v. Hall, which was an action against a custom-house
officer to recover back some duties, the duties were allowed by he attorney-general to remain
in the officer's hands for the purfwse of trying the question with respect to the right of imposing

then:

(A) In xvhat Cases Assumpsit is the proper Action, 34t5

them. Cowp. 204. Where money had been paid to the clerk of a company, who had paid it
over to the company, but not entered it in his books, Pratt C.J. held, that an action would
not lie against him for it; but if he had not paid it over, it would have lain against him or
the company. Gary v. Webster, 1 Stra. 480. Buller v. Harrison, Cowp. 565.] HCox v.
Prentice, 3 Maule & S. 344.|| [The deposit-money paid to an auctioneer, whether paid over
by him to his principal or not, may be recovered in an action against him, upon objection to
the title, or concealment of circumstances. Borough v. Skinner, 5 Burr. 26.39.] HP^dwards v.
Hodding, 5 Taunt. 315. 1 Marsh. 877. Ker v Osborne, 9East,378.; but see Horsfall v.
Ilandley, 8 Taunt. 136.||

[But an authority given by a court having competent Jurisdic- Allen y. Dun-
tion is not a void authority (a), though it may be afterwards ^^^' ^ ''^™ ^•
vacated : therefore an action for money had and received will not this principle
lie to recover over again money which has been paid to an exe- money paitl
cutor who has obtained probate of a forged will, notwithstand- "pon a judg-
ing the probate be afterwards declared null, and administration "'^"*' ^'^^'■' ,
be granted to the intestate's next of kin. But if the suppo<^ed f^j. error, can-
testator be living at the time of granting the probate, such action not be reco-
will lie, for in that case the authority is void, the ecclesiastical ^ered bac'<^.
court having no jurisdiction. aJ?Po7brr''

1 Ld. Raym. 742. \^Sed vide Feltham v. Terry, Cowp. 419.||

And vn a
made under

11 cases where the authority is merely void, a payment Cheap v.

r it is no discharge. As where the defendant, who in'*i^'fe'r^'*^R

had a house both in America and London, drew two bills in j27.
America of the same tenor and date on their house in London, in
favour of the plaintiffs ; one of them being lost, came into the
hands of a third person, \^\\o forged the payees^ indorsement, and
received the amount of it from the defendants ; afterwards the
real payees sued them on the other bill, and recovered.

Where A. pays a debt he owes to B. to the attorney of a Robson v.

person suing A. in J5.'s name, but without any authority from Katon, ^^^""^

B., the attorney is in that case answerable to A. in an action for j^o^j-jj y^^

money had and received, though he has actually paid over the Kelly, 2 Camp,

money to his employer; and though he conceived that he was i23.||
acting under the real authority of B.

Where money was ordered by the High Commission Court to Newdigate v.

be paid by the plaintiff to the defendant, it was allowed to be Davy, i Ld.

recovered back, as paid under a void authority. So it will if an P"^',"* ^,'*^; o

agent has only given credit for it to his principal m fiis books, -44 n
or on an account between them.]

If a feme sole marries a man, who in truth is married to Salk. 28.

another woman, and he makes a lease of her lands and receives p'- is- a^':

the rents, she may bring: an indebitatus assumpsit against him for J|":'^'^'^' ."":

, "^ . o , , 1. 1 1 ,• 1- fa Ann. in 7i.^.

so mucti money received to her use : adjudged after verdict, Hasser and

though objected, that he having no right to receive, the tenant Wallis.
remained still liable, and he had his remedy over against the
husband ; but the court held, that he being visibly a husband,
the tenant was discharged, at least that the recovery in this ac-
tion would discharge the tenant, as it would be a satisfaction to
the true lessor.

If a sheriiF levies money upon a^eri facias, the plaintiff may Coinb. 430.

have

346

per HoU C.J.
Salk. 12. S. C.

Randall v.
Bell, 1 Maule
&S. 714. diss,
Ellenborough
C.J.

ASSUMPSIT.

have an indebitatus assumpsit against him for so much money
received to his use.

II Where the defendant being the holder of a bill of exchange
in trust for the plaintiff, brought an action upon it against the
drawer, in which action the sheriff having been guilty of an
escape on mesne process, the defendant sued him, and recovered
damages to the amount of the bill ; it was held that the plaintiff
might recover the damages so recovered (allowing costs and ex-
penses), as money had and received to his use, since the action
for the escape might be considered a continuation of the original
suit, by means of which the fruits of such suit were obtained. ||
\^Assumpsit for money had and received lies for the value of a
Kenny D^ou^i. masquerade ticket, or such like ticket, (a)

137. 11(a) The ticket in this case having been intrusted to the plaintiff for sale got into the
hands of the defendant, who refused to account for it, and the plaintiff paid the value to the
owner, and then sued the defendant in assumpsit on the money counts; and it was held, that
the value might be recovered as money had and received, since the defendant not producing
it, a sale might be presumed ; and the court inclined to think the plaintiff might recover on the
count for money paid, &c. ; and see Brown v. Hodgson, 4 Taunt. 189.||

Menetone v.
Athawes,
3 Burr. 1592.

Comb. 341.
Dewberry and
Chapman.
IJIt does not

A shipwright who had repaired a ship, which by accident was
burnt while in defendant's dock, was allowed to recover in this
action the amount of the repairs.]

If A. takes an apprentice, and receives 30/. with him, for
which he is to teach him his trade, and make him free of the
city of London^ and being no freeman himself, the boy is bound
likewise to a freeman ; admitting that by the custom of London

time this ac- ^he last binding will not make him free without actual service,
yet an indebitatus assumpsit will not lie, nor has the party any
remedy, unless on a special action on the case for not making him
a freeman.

tion was com-
menced. If
it was not
brought im-
mediately after the binding, the decision would seem supportable on the ground, that the plain-
tiff having derived some benefit from the boy's teaching was not entitled to the whole sum
p£ud, but only damages for not making him free. See Taylor v. Hare, 1 New R. 262.||

11 But where the consideration on which money is paid fails,
assumpsit generally lies to recover back the money.
Cripps V, Thus, where A. sold a term of years to B. and delivered to

Reade, eTerm hinri the lease, but no assignment or conveyance was executed,
A. undertaking, that if any thing happened, he would see B.
righted, and it turned out that A.'s title was bad, and B. was
evicted by the rightful owner, it was held B. might recover the
purchase-money from A. as money had and received to his use.
So also, where trustees for sale under a will sold premises to
the plaintiff, and he paid the purchase-money, and took pos-
session, and the trustees divided the purchase-money among the
several cestui que trusts according to the will, but the convey-
ance was only signed by two of the trustees, and not by any of
the other parties to it, and the plaintiff was evicted by a stranger
in consequence of a defect in the title of the trustees under the
will; it was held that the plaintiff might recover back in as-
sumpsit from one of the cestui que titists, the proportion of the

purchase-

R. 606.

Johnson v.
Johnson,
3 Bos. & Pull.
162.; and see
Elliot V. Ed-
wards, 3 Bos.
& Pull. 181.
Bartlett v.
Tuchin,
1 Marsh. 583.
See Bree v.

(A) In what Cases Assumpsit is the proper Actiofi, 347

purchase-money received by him. In the first of these cases it Holbech,

is to be observed there was no conveyance, and in the last it was I^o"gl- R- 655.

incomplete; but if a conveyance is regularly executed by the

vendor, conveying to the vendee such title as the vendor has,

then caveat emptor applies, and the money cannot be recovered

back ; though if there are covenants for title, there may be a

remedy upon them.

Where the purchaser buys an estate with all faults, and taking Early v. Gar-
such title as the seller has, and the seller in answer to the pur- ^^^> ^ ^^'■"' ^
chaser's enquiries before the sale, has given him incorrect infor-
mation as to the title, and the purchaser is afterwards evicted,
he cannot recover the purchase-money as money had and re-
ceived, unless the seller's misrepresentation was fraudulently
made.

If the plaintiff has received any benefit from the thing, he Taylor v.
cannot recover back the money paid for it, as money had and Hare, i New
received, on the ground of failure of consideration. Thus where R- 260.
the defendant agreed to let the plaintiff have the use of a patent
obtained by defendant, in consideration of an annual sum to be
paid by the plaintiff to the defendant, and the plaintiff, after
using the patent and paying the annuity for several years, dis-
covered that the invention was not new, it was held that having
had the benefit of the invention for several years, he could not
recover back the sums paid.

If an annuity be set aside for an informality in the enrol- Shove v.
ment of the memorial, the grantee may recover back the con- Webb, i Term
sideration paid for it, as money had and received to his use. ^' '^'^^^

And this although some only of the securities are set aside by Scurfield v.
the court on motion. Gowland,

Ti , . . ,. . /. , . 6 East R. 241.

Uut this action lies not against a mere surety tor the annuity, gf^g..

although such surety has joined in a receipt with the principal Rastal, 2 Term
for the consideration-money ; for the action must be founded on R. 37o. ; and
an equitable claim, and there is no equity in calling upon a surety ^^ 2 Eq.
to pay back money which the principal alone received. ' ^^^*

So the putative father of a bastard, who pays before its birth Watkins v.
a fixed sum to the parish officers to discharge him from all future Hewlett,
responsibility for the maintenance of the child, may recover ^ ^'■^- ^ ^'"g*
back so much of the money as remains unexpended, as money
had and received to his use.

So where the defendant without the authority of his co- „ ,
partners, sold to the plaintiff certain partnership goods, and Robinson
received the money for himself alone, and in consequence of the 4 Maule & S.
defendant's want of authority, the goods were never delivered to 475.; and see
th (plaintiff; it was held, that he might recover the price from ly-fr*^^ ^'
the defendant, as money had and received to his use. i Marsb. iso.

5 Taunt. 446. Abbott v, Barry, 5 Moo. 98. 2 Bro. & Bing. 369.

The money must be received by the defendant to the plaintiff's Wliiteliead v.
use, and therefore where an agent receives money of the plaintiff 2^2^'"^i «.
to lay out in the purchase of an annuity on good security, and he 572^° "^

lays

348 ASSUMPSIT.

lays out on a bad security, and pays it over to the grantor of the

annuity, the plaintiff cannot recover back this money as money

had and received, but must sue on the special contract to lay

it out securely. ||

Salk. 22. pi. 2, If three are bound in an usurious obligation, and one of thera

Ruled by p^yg part of the money, and afterwards the obligee brings debt

Guildhall ^' against one of the obligors, who avoids the bond for usury, yet the

between Tom- obligor who paid the money cannot (a) maintain an indebitatus

kins and Bar- assumpsit for it, for he is particeps criminis, and having parted with .

net. Skui.411. \^\^ money freely, he comes within the rule volenti nonjit injuria,

6 Mod. 161. S. P. Comb. 447. S. P. [[a) It is difficult to discover what the action in this case
•was brought for: if it was merely to recover back what had been paid in satisfaction of prin-
cipal and legal interest upon the usurious contract, the determination may be supported ; for,>
so far as that went, the debtor was obliired, in natural justice, to pay ; and therefore could not
recover it back. But for all that had been paid beyond that, clearly an action would lie.
Dougl. G9('>. Cowp. 200. ; and see Astley v. Reynolds, 2 Stra. 915. contr. In cases of this kind
the true distinction is this : if the act is in itself immoral, or a violation of the general laws of
public policy, there the party paying shall not have this action; for where both parties are
equally criminal against such general laws, the rule is, potior est conditio defeiidentis. The case
of the solicitor, cited in Salk. 22. Skin. 412. Lewis v. Bourdieu, Dougl. 468. Andree v.
Fletcher, .5 Term R. 266. Browning v. Morrice, Cowp. 790.] |jStokes v. Twitchen, 2 Moor
R. 538. Thistlewood v. Cracroft, 1 Maule & S. 500.|| [But there are other laws which are
calculated for the protection of the subject against oppression, extortion, deceit, &c. If such
laws are violated, and the defendant takes advantage of the plaintiff's condition or situation,
there the plaintiff shall recover. Smith v. Bromley, Dougl. 696. Cockshott v. Bennet, 2 Terra
R. 763. Nerot v. Wallace, 3 Term R. 17. Jaques v. Golightiy, 2 Black. R. 1073. Jaques v.
Withy, 1 H. Black. R. 65. Clarke v. Shea and Johnson, Cowp'. 197.] ||WiUiams v. Headley.
8 East R. 578.11 [But if one of two parties concerned together in an illegal act (illegal only as
being malum prohibitum, not as malum in se), pay money with the privity and at the express re-
quest of the other, such money may be recovered back ; though in such a case the law will
raise no implied promise. Petrie v. Hannay, sTermR. 418. Faikney v. Reynous, 4 Burr.
2069.] IJSee as to these cases, post., p. 372.|| [And where money has been paid for another on
illegal transaction, an action will lie for the recovery of it, though such transaction may be
complicated with others that are illegal, and furnish no ground for its support. 5 Term R. 418.
And with respect to the recovering back of money paid on illegal accounts, a distinction has
obtained as to the state of the transaction at the time of bringing the action, whether the con-
tract be then executed., or only executory : in the former case it cannot be recovered, in the
latter it may. Lowry v. Bourdieu, Dougl. 468. Andree v. Fletcher, 3 Term 11. 266.] [[And
accordingly in cases of illegal insurance, if the period of the risk has elapsed, the insured can-
not recover back the premium, although they cannot sue on the policy. Vandyck v. Hewitt,
lEastR. 96. Morck V. Abel, 3 Bos. & Pull. 35. Lubbock v. Potts, 7 East R. 449. And so in
case of illegal wagers, if the event of the wager is decided, the loser cannot recover back from
the winner his deposit ; for he is not to be allowed to take the chance of the event being in
his favour, and of the money being paid though not legally due, and afterwards when the
event is against him to recover back the deposit. But if one party give notice to the other to
rescind the contract before the event is determined, he may recover back his deposit. Howson
V.Hancock, 8 Term R. 575., which seems to overrule Lacaussade v. White, 7 Term R. 535.
Brandon v. Hibbert, 4 Camp. 57. Tappenden v. Randall, 2 Bos. & Pull. 467. Aubert v. Walsh,
3 Taunt. 275. Busk v. Walsh, 4 Taunt. 290. Eltham v. Kingsman, 1 Barn. & Aid. 683. Taylor
V. Lendy, 9 East, 49. And where the wager is on an illegal battle or race, after the parties
have fought or run, they still may recover back their deposits from a stakeholder if they give
notice to him before he has paid them over. Cotton v. Thurland, 5 Term R. 405. Smith v.
Bickmore, 4 Taunt. 474. Bate v. Cartwright, 7 Price, 540. Hastelow v. Jackson, 8 Barn. &
C. 221. In strictness the parties, perhaps, should not be allowed to rescind the contract anc?
recover the deposit, unless they do so before the risk is altered by the lapse of time. See
observation of Mansfield C. J. 3 Taunt. 282., and note (a) 4 Taunt. 292.||
Salk. 22. pi. 2. But if ^. pays money to B. upon a mistake, as thinking that
447'^^^here"a ^^^^^ ^^^ ^^ much due on account {b), S^c. he may maintain an
person pays assumpsit for it.
money for fees which were not due. /X^iL 'JxJlAA {/^ ; " So

(A) In what Cases Assumpsit is the proper Action. S4<9

So if a man pays money upon a policy of assurance (a), sup- Skin. 412. S.P.
posing a loss, when in truth there was not any, he may bring an ^^ " ^ ^"
indebitatus assumpsit for so much money received to his use. ^^j^^ his money

by mistake, Hthat is, a mistake of fact,|| or througli fraud in the receiver, it is the same thing.
Skin. 412. Salk. 22. S. P. Whip v. Thomas, 1 G. 1. Bull. Ni. Pri. 130. [In this form of ac-
tion a man may recover back money paid under a warrant of distress upon a conviction, after-
wards quashed. Feltham v. Terry, cited in Cowp. |l419. 1 Term R. 387.11 ; or in consequence
of the judgment of a court not competent to enter into the merits of the case. Moses v. Mac-
farhine, 2 Burr. 1005. 1 Black. R. 219. S.C] HBut the authority of this last decision has
been much and repeatedly questioned by distinguished judges. See 2 H. Black. 414. 3 Bos. &
Pull. 169. 5 Taunt. 160. 7 Term R. 269. And it is now settled that where money is paid
under compulsion of legal process, it cannot be recovered back in an action for money had and
received, since if there is ground for recovering it this should have been a defence to the first
action. Marriott v. Hampton, 7 Term R. 269. Gower v. Popkin, 2 Stark. R. 85. Knibbs v.
Hall, 1 Espin. 84. Brown v. M'Knally, Ibid. 279. Kist v. Atkinson, 2 Camp. 63.|| [And
wherever the consideration on which it has been paid happens to fail. Shove v. Webb, 1 Term
R. 752.] llJohnson V. Johnson, 3Bos. & P. 162. Scurfield v. Gowland, eEast, 241. Elliot v.
Edwards, 3 Bos. & Pull. 181. Bartlett v. Tuchin, 6 Taunt. 259. Jones v. Ryde, 5 Taunt. 488.
Watkins v. Hewlett, 1 Bro. & B. l.|l ; but the contract must be entirely rescinded. Towers v,
Barrett, 1 Term R. 135. ; for if it be still open, the plaintiff can only recover damages for the
breach of it, and therefore must state it specially. Weston v. Downes, Dougl. 25. Power v.
Wells, Cowp. 818. And the contract, where it does not determine by the original terms of it,
but requires some act of the plaintiff to put an end to it, must be rescinded within a reasonable
time, else he will be entitled only to damages. Compton v. Best, cited in 1 Term R. 156.
Espin. 15.] »

II But in such cases if the money is paid voluntarily, and with Bilbie v.
full knowledge or full means of knowledge of all the circum- o e" t^460
stances of the case, it cannot be recovered back ; since the rule Gomery \.
volenti non Jit injuria applies, and every man is bound to know Bond,3Maule
before he pays money, whether the law renders him liable or & S- 378.
not. The distinction is between an ignorance or deception as to n"crer^ ^*
the facts which excuses a party, and a mere ignorance as to the 5 Taunt. 143.
law which does not excuse him. Reyner v. Hall,

4 Taunt. 725.

But if the payment be made under any species of compulsion, Astley v. Rey-
as where a pawnbroker refuses to deliver back the plaintiff's noWs, Stra.
goods, unless paid illegal interest, or where the steward of a pj "^ 'geiw,
manor refuses a copyholder admission without an exorbitant fine, Ni. Pri. 86.
or where the sheriff takes excessive fees on issuing warrants in Dew v. Par-
right of his office, the payment not being voluntary, may be ^"f j| ^f^'.
recovered back if illegal. ^„j se^ Mo/,

gan v. Palmer, 2 Barn. & C. 734. Shaw v. Woodcock, 7 Barn. &, C. 75. Holt's Ca. 346.

And so also, if a party with full knowledge of all the facts, Stevens v.
promise to pay money claimed of him, and which he is not ^^^^^\
legally bound to pay, he is bound by such promise. jj^j g'gg' '*

4 Taunt. 93.

If the plaintiff discounts for the defendant a navy bill, which Jones v. Ryde,
turns out to be forged, and is refused payment on that ground I '^^'[[nt 488 •
at the navy office, and the plaintiff pay the money on it to a third ^jj ^^^ FuHeV
party, to whom he had passed it, he may recover the amount v. Smith,
from the defendant in an action for money had and received, iRy.&Moo.
all parties being ignorant of the fraud ; tor the money is paid ^- ^' ^' ^^'
under a mistake of fact, and the plaintiff is not in fault.

And it makes no difference, if the navy office on presentment Bruce v.
pay the bill, supposing it genuine, and on discovering the Bruce,

forgery

350

ASSUMPSIT.

1 Marsh. R.
165. 5 Taunt.
495. n.

Price V. Neal,
3 Burr. 1354.
1 Black. R.
.390.

Smith V.
Mercer,

Wilkinson \.
Johnson,
3 Barn. &
Cres. 428.
(a) But where
the notice of
the forgery
was not given
to the party
to whom the

till the daj/
after the pay
ment, it was
held, that the

forgery, the party presenting it refund the money paid, and
receive the same from the plaintiff, from whom he took the bill.

But if the drawee of a forged bill accept and pay it, or pay it
without acceptance, he cannot recover back the money from the
party to whom it was paid, for the drawee is bound to satisfy
himself that the bill is genuine.

Nor can the bankers of the drawee paying a forged bill on his
account, recover back the amount for the same reason.
6 Taunt. 76.; but see Martin v. Morgan, 3 Moo. 635.

However, if the London correspondent of a supposed indorser
of a bill which has been dishonoured by the acceptor, pay the bill
on the application of the notary for the honour of such indorser,
and afterwards on discovering that the names of such indorser,
and of the dravi^er and acceptor are forged, give immediate
notice (a) to the defendant to whom the amount was paid, in
such time that notice of the dishonour may be sent the same day
to the prior indorsers, such correspondent may recover back the
amount of the amount from the defendant; since the money was paid by mis-
bill was paid take, and the mistake was discovered before the defendant had
lost any remedy on the bill, and the court also distinguished this
from the former cases, since the plaintiffs here were neither the
drawers nor acceptors of the bill nor their agents, and the de-
party paying it fendants were in fault as well as the plaintiffs, since their calling
could not re- ^^ ^}^g plaintiffs amounted to an assertion that their principal's
cover the '■ . n ^i i -n •■

money back. "'^'"^ was actually on the bill. 1|

Cocks V. Masterman, 9 Barn. & C. 902.

6 Mod. 161. So if ^. gives money to B. to pay C. upon C's delivering up

per Holt C.J. writings, SjX. and C. will not do it, an indebitatus will lie for A.

many such against 2?. for so much money received to his use.

actions have been maintained for earnest in bargains, &c., ||when the bargainor would not

perform, and for premiums of insurance when the ship did not go the voyage. ||

Carth. 208. If one be named a commissioner to examine witnesses in a

m'^ VU ^^"s^ depending in Chancery or Exchequer, who officiates ac-
cordingly, he may bring an assumpsit for his labour and pains ;
for though he is to be considered as an officer of the court, yet
he is not compellable to attend against his will; nor does the
trust reposed in him make his taking a reward bribery, for the
party is to take care to name such as will serve, and it is but
reasonable it should be at the charge of him for whom he
officiates.

The gentlemen ushers and daily waiters to the king brought
an assumpsit against the defendant, in which they declared, that
all gentlemen ushers, daily waiters, Sfc. time out of mind, had
used to have a fee of 51. of every person who voluntarily accepted
the honour of knighthood, and that the defendant (on .<5uch a
day) had voluntarily accepted knighthood, and thereupon became
indebted to them in 5/., and in consideration thereof had promised
to pay the money, which he had not performed; and upon a
demurrer to this declaration, it was adjudged this action would
lie for this duty.

Where

Collinson,
Comb. 186.

s.c.

Carth. 95.
Duppa and
Gerrard.
Show. Rep.
78. S.C.
Lies for fees
due to the
Usher of the
Black Rod.
2Stra. 747.
See 12 Mod.
607.

rB) What Words create sufficient Certainty in a Promise. 351

Where a man comes to buy goods, and they agree upon a yide title

price and a day for the payment, and the buyer takes themaway, 2^''over and

an assumpsit for the money is the proper action, for trover will u^'!^ij^\"'

not lie for the goods, (a) because the property was changed by a the goods are

lawful bargain, and by that bargain the buyer was to convert the bought with a

goods before the money was due ; but if a man comes to buy fraudulent in-

goods, and they agree upon a price for present money, and the p^a"y '^" them*

buyer takes the goods away without payment, trover lies, because Ferguson v.

the property is not altered (b) and therefore the taking away the Canington,

goods without payment of the money, is an injurious taking, for ^^^/?1*^ ^'

which the action lies ; but if a man sells goods on payment of „enerallv"

money on a day to come, and the money be paid, and the speaking the

goods not delivered, trover lies, because the property is in the property in

buyer, (c) «"^'i *=^s« ,

*' ^ passes to the

buyer on the sale, so as to throw on him all risk as to the goods, though the seller has a lien

for the price, and the buyer cannot take them away without paying it. See 5 Barn, & C. 862.

6 Ibid. 392. 8 Ibid, 282. (c) That is, where the goods are in existence at the time of the sale ;

for if the goods are to be made, the buyer acquires no property in them till they are finished

and delivered, notwithstanding he pays the price in advance. Mucklow v. Mangles, 1 Taunt.

318. ; but see Woods v. Russell, 6 Barn.& A. 942. Atkinson v. Bell, 8 Barn. & C 277.11

If a man and a woman, being unmarried, mutually promise Carter 233,
to marry each other, and afterwards the man marries another Dickenson
woman, by which he renders himself incapable of performing his and Holecroft.
contract, an assumpsit lies, in which the woman shall recover g°p' rj' '
damages ; for though matrimonial causes are regularly cognizable 147.' s. P.
in the spiritual courts, yet the contract in the present case being Stile, 295. S.P.
executor}', and revoked by the husband by the subsequent mar- ^eb. 866. S. P.
riage, could not be enforced by ecclesiastical censures, as a con- ^diudeed '
tract in prasenti may ; hence therefore, there being no adequate § Mod. 172.
remedy in the spiritual courts, and marriage being an advantage, S. P. Vide
and the loss of it a temporal loss, it is fit that there should be a Carth.467.
remedy in the temporal courts, otherwise there would be a failure ^J R,fym^586.
of justice. 12 Mod. 2 14."

5 Mod. 511. Where on such a contract the man brought an action against the woman ; and it
was objected that it would not lie, because marriage was no advancement to him as it was to a
woman ; but this distinction was exploded. Such promises are good, though the time of mar-
riage be not agreed on ; but in such case it is necessary, to entitle the party to his action, to
allege that he offered to marry her, and that she refused. Carth. 467. This action* must be
founded on reciprocal promises ; and, therefore, if the promise be on one side only, it does
not bind, being only nudum pactum. Salk. 24. But if a man of full age, and a female of
fifteen, promise to intermarry, and afterwards he marries another, an action lies against bin;
for though such promise may be said to be voidable as to the infant, yet it shall be good against
the person of full age, who shall be presumed to have acted with sufficient caution ; otherwise
this privilege allowed infants of rescinding and breaking through their contracts, which was in-
tended as an advancement to them, might turn greatly to their prejudice. Trin. 3 G. 2.
adjudged between Holt and Ward, 2 Stra. 150. 637. Barnard. K. B. 209. Fitzgib. 175.275.
Vide head of Infants. These contracts are not within the statute of frauds. Cork v. Baker,
Stra. 34. ||An administrator cannot maintain the action for breach of promise of marriage to
t^« intestate unless special damage is stated. 2 Maule $i S. 408 .||

* 'l'J'"»'» must mean where the defendant remains sole at the time of commencing the action.

(B) What Words create sufficient Certainty in a Promise.

yi LL promises and contracts are to receive a favourable inter-
pretation ; and such construction is to be made, where any

obscurity

352 ASSUMPSIT.

obscurity appears, as will best answer the intent of the parties ;

otherwise a person, by obscure wording of his contract, mi<>ht

find means to evade and elude the force of it. Hence it is a

general rule, that all promises shall be taken most strongly

against the promisor, and are not to be rejected, if they can by

any means be reduced to a certainty : Therefore,

roph.148. W A.y in consideration that B. will marry his daughter, as-

a Roll R. 104. sumes and promises to give with her a child's part, and that at

>, . . L ee a ^y^^ ^-^^^^ of his death he will give to her as much as to any of his

similar case, i • i i ° i • • i • r

1 Roll. R. 19.". children, except Ins eldest son; this is a good promise, tor

Cro. Jac. 417.J though a child's part in itself is altogether uncertain (a), yet
(rt) But if a being to give as much as to any of his children, the promise is
^oTnro?nises"i c^^'^'"" enough, it being averred what the younger son had.
child's portion, this of itself is certain enough ; for by the custom there it is known how much
each child shall have. 2 Roll. R. 104. per Montagiie C. J.

Roll. Abr. 6. But if there be a discourse between the father of A. and B.,

pi. i.(,b) But in relation to a marriage between the said A. and the daughter of

l!^/^"j' ^ ]' 1 ^-j ^"d B. tunc et ibidem affirms and publishes to the father of A.

b. L. adjudged, 77,. . . , . . t' 1 1 • . 1 •

because the <luod aaret ei qui maritaret his said daughter with his consent

words in the 100/., and after A. marries the daughter of 5. with his consent;

declaration yet this affirmance and publication of jB. shall raise no promise

ZaA MZavit "P°" which an action upon an assumpsit may be brought, [b]

and it was not because these words do not include any promise,
averred or shewn to whom. When a ^ivomhe Jimiam facere^ Anglic^, to make good a portion

amounts to a promise to pay. Vide 2 Roll. Abr. 738. pi. 2. Cro. Car. 202. Pilchard v.
Kingston.

Roll. Abr. 6. If a bill of exchange be drawn on a merchant, and he sets his

Cro. Jac. 306. j^jjjj^g ^Q j^^ ^j^lg^ ^^ ^jjg custom of merchants {b) amounts to a

(i) Where to promise to pay it.

warrant a debt amounts to a promise to pay it. Vide 2 Roll. Abr. 788.

^°^'- ^'"■' ^^' If a man promises another, in consideration that he will assign

and Simon! ^° ^^'"^ ^ certain term, to pay him 10/., this is a good assumpsit,

though the time of assignment and payment be not appointed ;

for the 10/. shall be paid in a convenient time after the assignment,

which also must be done in convenient time, and he shall not have

time during his life.
Roll. Abr. 15. So if ^. be indebted to B. for certain things to him sold, and
27.S. C. C. comes to B:, and promises him that if yi. do not pay him the

(c) Qw.Ifan money, that then he himself will pay it, an action upon the case
the cotrsider? ^'^^ ^°^' ^- ag'^^'n^t C. upon his promise, if A. does not pay the
ation being money in a convenient time, (c)

executed, and the proiriise seeming to be within the statute of frauds, 29 Car. 2. c. 3. ? See
post (D), and suprd, tit. Agreements. ||The promise would seem to be nudum pactum, unless
there were a consideration of forbearance by B. to sue A. at CVs request, or some other con-
sideration.il [If vJ. promise to pay B. such a sum, if C. does not, there A. is but a security for
C. But if ^. promise that C. will pay such a sum, A. is the principal debtor; for the act done
is upon his credit, and not upon C7.'s. Per Lee J. Fitz.503.1 HSee 2 Term R. 80. Cowp- 227.
1 Barn. & Aid. 305.||

Roll. Abr. 15. If ^. is indebted to B. in 10/. and upon this C promises that
in consideration that he will forbear A. till such a day, if A.
does not pay him the said day, he himself will pay him the said

day;

day ; this is a good promise, upon which B. may have an action
against C, for though A. had the whole day to pay it, and so it
was impossible for C. to pay it the same day, if he did not pay
it, yet the substance of the promise is to pay, and the time
limited being impossible, is void, and then it ought to be paid
on request.

If Jf. is indebted to B. in 10/. by obligation, and A. dies, and Cro. EHz.G43.
makes C. his executor, and C. having assets, ^c. in consideration (^|, ^ ^P'^'""
quod (la7-ct diem solutionis pro uno an?io, promises payment; an upon a pro-
action on this promise will lie against him (a), for though in niise to assign
proper sense a day cannot be given upon the bond, yet it shall the shop of

be taken according to common parlance, viz. deferring the day , detendant,

P ° * ' o J and trans/erre

Ot payment. negoiiationem^

&c. All. 67. Stile, 111.

1^ A. in consideration that B. will marry his daughter, assumes Cro. Car. 194.
and promises to give to B. twenty French pieces ; this is a good Pointer and
promise, for this, according to our usual speech, sliall be intended • °|'"'j"^'
French crowns, which are the common coin of France^ and here °
known.

If the plaintiff declares, that whereas there was a'communi- Sid. 270.
cation between the plaintiff and defendant, concerning the bark Please and
of certain wood, and that thereupon it was agreed that the de- l-I; tfp '
fendant should give to the plaintiff tw« shillings per seam for all
the bark of such wood as the plaintiff should cut, and that
thereupon the defendant assumed and promised to have ready
upon a certain day articles purporting the agreement, and an
obligation for the performance thereof, S^'c. the declaration is not
good, because not said in what sum the obligation was to be ; (i) Hob. 69,
and a certain sum cannot be intended, because the number of 7o. Like point
seams are altogether uncertain ; but being a verdict upon the »"judged.
general issue (6), it was adjudged for the plaintiff; butj^er cur.^ g p gjijudgej
upon demurrer, or the special issue, it had been naught.

But if there be an agreement (c) to enter into an obligation for Sid.270./jer

performance of a thing of certain value, without mentioning in ^"''* ^'^> ^° "P"

I , -^ I 11 L J- ^ .1 I / j\ on a covenant

what sum, it snail be according to the value, {d)^ jo g^^j.^ ;„(„ ^

bond that B. shall enjoy such lands, it shall be intended in a sum to the value of the land.
Samon's case, 5 Co. 78, a. Cro. Eliz, 432. [d) Of double the value. Cro. Jac. 1 ] 6. adjudged.
Hell. 89. like point duhitatur. When for payment o( money. Lev. 88.

In an assu7npsit, the plaintiff declared that the defendant in Lev-S.?. Keb.
consideration, S^-c. six months before the return of King Charles 5s. S. C.
the Second, assumed to pay 20/. to the plaintiff, if Charles
Stewart foret Ilex AnglicE infra 12 menses time prox. sequent. ;
and adjudged a good promise, for the words shall be taken
according to the subject matter, viz. that the king that was then
out of possession, should be in possession within six months.

Consideration is defined a cause or occasion meritori- Dyer, 3,6. b.
ous, that requires a mutual recompence in fact or in law. Im^^ ^r
^^OL. I. A a Therefore,

354> ASSUMPSIT.

Doctor and Therefore, if a man promises another to give him so much

K 1 '-jo^ R°n '^^"^y ^^ ^ '^^y ^o come, or to build a house (a), without con-
Abr. 9 10. sideration, this is a naked promise, and will not oblige.
[So where a carpenter had undertaken to build a house, and had not done it, it was holden
that an action would not lie. 2H.4. 3b. llH.4.33. Ld. Raym. 919., and 5 Term R. 149.
S. C. cited and agreed. It does not, indeed, appear that this case was deciiled upon the
ground of its being a mere nudum pactum for want of any consideration, though Broke, in his
abridgment of it, tit. Action sur Case, 40., has stated it to be so; the want of a written cove-
nant, and the repugnance which the judges of those times felt to extending an action of tres-
pass to instances of mere non-feasance, are the only reasons for the judgment assigned by the
report.] (a) But if a carpenter promises to repair my house before a certain day, and he does
not do it, by which my house falls, I shall have an action upon the case. 19 H. 6. 49. Roll. 9.

S. C. So if a carpenter undertakes to build a house for me, and does it ill, an action on the

case lies against him. Roll. Abr. 9. Kelw. 78. S. P. So if a person undertakes to remove a
quantilj- of brandy from Brook-market to Water-lane, and, by reason of his neglect, one of the
casks breaks, an assumpsit lies against him, though it is not averred that he was a common
porter, or that he had any reward. Salk. 26. pi. 12. 2 Ld. Raym. 909. Com. Rep. 133.
5 Salk. 11. Coggs and Barnard. Vide tit. Bailment.

Elsee V. l|If the defendant undertake to perform work, he is not liable

lateward, ^^^ ^j^^ mere nonperformance, unless there is a consideration for
5 lermR.149. , . . j i • • . • •. i . r- i.

his promise, — and this neither in assumpsit nor case : but it he

enter upon the work, and do it ill, he is liable though there
Dartnallv. were no consideration, for this is a misfeasance. Where the
Howard, declaration stated, that in consideration that the plaintiff at de-

345. • and see fondant's request would retain the defendant to lay out money
Bates V. Cort, on annuity for the plaintiff, the defendant undertook to do his
*^ 2 Barn. & C. duty in the premises ; and the plaintiff averred that he did retain
^(l\'n f ^^^ defendant accordingly, but that he would not do his duty,

whether^the'^^' ^^^ °" ^^^ contrary laid out the money on the personal security
defendant of a person in insolvent circumstances, the count was held bad

with reward in arrest of judgment, and the court relied principally on the
h °" r.^hr^ ground of the defendant having no reward (6) ; also adverting to
this general ^^^^ absence of any allegation that he was an attorney. ||
count ; for unless his duty on such a retainer with reward amounted to a guarantee of the
sufficiency of the annuity (which certainly could not be) it is difficult to see how he could be
held liable. It would seem that his duty even with reward would only extend to honesty,
integrity, and common care.

2Bulst. 269. Also idle and insignificant considerations are looked upon as

none at all ; for wherever a person promises without a benefit
arising to the promiser, or loss to the promisee, it is looked upon
as a void promise.

3 Burr. R. 673. HAny detriment to the plaintiff incurred at the request of the

4 Bm-n & C tlefendant is a good consideration for the defendant's promise :
8. * the request raises a presumption that it must be beneficial to the

defendant.
Williamson v. Thus the giving a bond of indemnity by the plaintiff to the
C.ements, defendant at the defendant's request, to indemnify him against a
and see Bailey ^'^^ of exchange drawn by the defendant, and which the plaintiff,
V. Croft, the holder of it, had lost, was held after verdict to be a good

4 Taunt. 611. consideration, for the defendant's promise to pay the amount of
Tw!7i''^^ ^' the bill ; it being alleged in the declaration that the defendant was

DorVllle, -ii i , ^ ■, .^ -m • i-n ii i ^

5 Barn. & Aid. indebted to the plaintiff on the bill, and the bond purporting
117. that the bill had been paid by the defendant.

Parker V.Bay- But the laying out of money by the plaintiff merely for his

own

own advantage, though done at the defendant's request , cannot I's, 2 Bos. &

be a consideration to support a promise by the defendant. 1| Pull. 73.

If a lessee for years, in consideration the lessor will foi'bear to Stile, 505. said,

distrain corn in the shocks, assumes and promises to pay all such Hardr. 73. S.P.

rent as is arrear, the consideration is void (a), because such corn ?^ as having
^ J. . . , , ^ ' been adiiidged.

IS not distramable. [A promise to

pay the debt of a person illegally arrested, in consideration of his being set at liberty. Randal
V. Harvey, Godb. 558.; [jor to pay extra wages to a sailor in consideration of extraordinary
exertion on his part, for a sailor is bound to exert himself to the utmost for the ship. Harris
V. Watson, Peake's Ca. 72. Stilk v. Meyrick, 2 Camp. 317.|| j or to pay money upon forbear-
ance of a suit, when in point of law there is no cause of action. Lloyd v. Lee, 1 Stra. 94.;
j|or to pay in consideration of natural love and affection. Cro. Eliz. 755. ; or pay money ia
consideration of past cohabitation, unless the defendant seduced the plaintiff. Binnington v.
Wallis, 4 Barn. & A. 650.\\ ; or to revive a security, which is void in its creation. Cockshott v.
Bennett, 2 Term R. 765.; or to fulfill an engagement entered into by an agent beyond the
extent of his commission. Fens v. Harrison, 5 Term R. 757.; all these are promises without
a consideration ; for the consideration is the material cause of the contract. Fulb. Paral. 5, 6.,
and of course cannot be predicated of a nullity.] (a) Vide title Distress, that such corn is now
distrainable, therefore an action would lie.

If the plaintiff declares, that in consideration the defendant Stile, J.'O.

was indebted to him in 20/., the defendant did assume and pro- f'^j"<'g?d be-

1 ,. , , T „ , p 1 1 • -/y tween (jrodwin

mise to deliver several cattle to J. S. to the use ot the ^iamtiir, ^nd Butlin.

and that the defendant had not delivered the cattle accordingly, Sfc.
the consideration is void, because it does not appear that the
debt was to be discharged thereby ; and if not, the plaintiff not-
withstanding might bring his action for the money, so that the
promise is but Jiudum pactum.

If A., in consideration that B. will deliver to him a recogni- Leon. 297.
zance to read over, assumes and promises within six days to re- Cro. Eliz. 158.
deliver the same to B., or to pay him 1000/.; this is a good pro- V'^epomt
mise, upon which B. may have an action against A., for the con-
sideration is sufficient.

If A. demises certain lands to B. rendering rent, and B. assigns Cro. EHz. 67.
to Z)., after which rent becomes due, and Z). in consideration 150. S.C. ad-
that A. will sliew him a deed, by which it may appear that such J""8^'^» but
rent is due, assumes and promises to -4. forthwith to pay the there was in
.same; if^. does shew Z). the indenture of lease, by which it consideration,
appears that such rent is due, A. shall have an action upon this &c. to pay a
promise against D. ; for when any thing, though never so small, ^"'^■charge.
is to be done by the plaintifii it will be a consideration sufficient like point ad",
to ground an action. judged.

U A, is lord of a manor, and a controversy arises between A. Leon. 105.
and 7i., concerning a certain copyhold which B. claims to hold 4 Leon. 51.
of the said manor, whereupon they submit to the judgment and S.C. adjudged,
award oiJ.S.; and in consideration that A. {b) had promised to (*) ^?^^^ ^^^
abide thereby, B. assumes and promises that if the said J. S. shall ^g ^^^^^ ^ ti,g
adjudge the copy insufficient, that then he the said B. will forth- same instant,
with deliver up to A. the possession thereof; this is a good con- else they will
sideration, the promise being reciprocal (c), and to avoid variances „ h^ts^c''*'
and suits. ElL'i57. '°'

2 Jones, 168. (c) 4 Leon. 3. the like point. March, 75. like point, per cur. Cro. Eliz. 545.
like point adjudged, 889. like point, ;w cur. Hob. 88. like point adjudged. 2 Mod. 55. like
point adjudged. Thorpe v. Thorpe, Comyns, 98. pi. 67. Ld. Raym. 235. 662. S. C. Salk.
i7I. pl.3.S.C. 12 Mod. 4 52. S.C.

Aa 2 If

356 ASSUMPSIT.

Leon. 192. If the father o? A. and B. lying sick, declares his intention to

?^'"*fe^* devise a rent of 4/. pa- ann. to his younger son during his life,

S.c! adjudged ^"'^ thereupon A. the eldest son, in consideration that the father
will not charge his lands therewith, assumes and promises to B.'
to pay the said rent ; whereupon the father forbears to charge
the land, and dies, and the land descends to A. discharged of the
said rent, this is a good consideration.
RolI..^br. 19. If B. the daughter of A. be heir apparent to C, and D. pro-
Moor, 857.^ mises to A. the mother, in consideration that she would (a) con-
by three" ° ^^^^ ^"^ agree that the said B. her daughter should marry his
a^inst one. son, that he would give to the said A. 100/., upon which A. con-
Brownl. 18. sents, and the marriage takes effect; this is a good consider-
SC. adjiitlged. ^tion, for nature has given the power of disposing to parents,
adiiidced by ^"^ ^" nature their children are bound to obey them,
three against one. Hut. 59. S. C. cited, (a) In consideration the plaintiff would give his

good-will and furtherance to a marriage. Moor, 595. pi. 808. Where marriage brokage

bonds and other considerations to procure marriage are made void in equity ; vide Abr. Eq.

89, 90. and tit. Marriage. In consideration the plaintiff would procure the consent of her

master for the defendant to have a shop in his house, &c. a good consideration, Godb. 216.
— In consideration the plaintiflf would procure the consent of the lessor, that the lessee might

assign his term, &c. Hut. 39. adjudged a good consideration. In consideration that the

mother of .4. would permit her son to serve him for such a time. Roll. Abr. 20. adjudged.

Roll. Abr. 21, If ^., being on a treaty with B. for the purchase of certain
hS ^ J"^|^"' lands from J?., comes to A's wife, and promises her in consider-
" ■ " ation that she would not hinder the bargain, that he would give

her 10/. or a riding-suit; this is a good consideration, and the
husband and wife may have an assumpsit on this promise.
Roll. Abr. 22. If B. in consideration that A., at the special instance and re-
^^) 2j^°^'-^.- quest of i5., would permit B. to have and hold a messuage and
adiudUd^°'" land, then in the occupation of 5. una aim lirqficuis et commodi-
Vent.2i 1,212. tatibus hide proveiiientibiis to his own use, promises to pay him
like point ad- 135. at Mzc^ffe/wa5 after, for rent for the premises, and also at
judged. Hardr. ^-j^g gjjj^j feast to deliver the possession of the premises to A. in as
biiaiur. " go^^ repair as they were at the time of the demise ; this is a good
4 Leon. 2. like consideration to maintain an action, though it does not appear
point ad- that A. had {b) any estate therein at the time of the promise, and

^<"k h ^'^^ though it appears that B. was then in possession thereof.

Sid. 323. Lev. 204. like point adjudged. But upon evidence it must be proved what estate
the plaintiff' had, so that it may appear that there was a consideration. 2R0II. R. 435. [But
Qu. for the action is founded merely upon the contract, and the lessor's title cannot be con-
troverted in it. 2 Wils. 218.] iilf -B. had come in under A. then he could not dispute A's
title ; but it appears that B. was already in possession at the time of his promise, and there-
fore he might show that A. was a mere stranger ; in which case B. would not occupy by his
permission, and would not be bound to pay the money. See Williams v. Bartholomew, 1 Bos.
& Pull. 326. Rogers v. Pitcher, 6 Taunt. 202.|| But after a verdict for the plaintiff, the court
will intend it was proved what estate the plaintiff had. Vent. 211. Lev. 179.

2 Bara"& C*' II Where the plaintiff agreed with A. B. to sell and deliver to
474. * * him a lace machine for 220/. to be paid thus ; 40/. on delivery,
and the residue by weekly payments of 1/., which were to be
paid to the defendant as the trustee for the plaintiff; and in
case of any default plaintiff was to have back the machine, and
in consideration of the plaintiff, at defendant's request, appoint-
ing him to receive the weekly instalments, defendant promised

plaintiff

plaintiff to take the machine and pay the balance, should there
be any default in A. B. in the weekly instalments ; it was held
that this promise was nudum pactum, there being no consideration
for it. II

If A. in consideration that E. will make an estate at will Roll.Abr. 23.
to him, such as counsel shall devise, promises, I'^c. this is no good Poph- 183.
consideration, for that he may presently after the estate made i.; V'r"!^*
determine it. [a) there be any

doubt or dispute whether the party is tenant at will or ftw years, the granting such estate as
he hath will be a good consideration. 1 Vin. Abr. 309. ; and see Richard on v. Mellish,
2 Bing. 229. 3 Bing. 334.||

If^., having several young children, lies sick, and B. in con- 3Leon. ss.
sideration that A. after his death will commit the education of his a'^judged be-
children, and the disposition of his goods during their minority, ^^j Smith.
to him, assumes and promises to A. to procure certain customary Vide 3 Leon,
lands to be assured to one of the children ; whereupon A. ap- 129. (A) But
points B. overseer of his will, and that his goods should be under " °"^ 9^^"
the disposition of B. A. dies, and B. by virtue thereof, takes gijeration the
possession of the several goods of A. ; if B. does not procure such other will re- ,,
lands to be assured accordingly, yet shall the executor of A. have Hnquish the
no action against J5., for here .is no consideration, inasmuch as executorship,
the power which B. had given him was only pro educatione (.^is is good,
//i^rorw/n, and no profit to himself (Z*); and though such over- Bulst. 185.
seers too often make their advantage, yet that is contrary to
their trust, and such a fraud as the law will not presume.

If there be certain controversies between A. and B. and they 3 Leon. 105.
submit to the award of J". iS"., who among other things is about to adjudged
award that B. shall deliver up to A. two several obligations,
wherein A. was bound to B., whereupon B. in consideration
that upon the request of A. the clause in relation to the delivery
up of the obligations shall be left out of the award, assumes and
promises to A. to deliver them up to A. gratis, Sfc. this is a good
consideration, the clause being omitted ad speciakm instantiam
ipshis A.

If A. pawns goods to B., upon condition of redemption at a Roli.Rep.215.
day certain, and after the day the goods being not redeemed, adjudged.
B. says he will sell them, upon which D. says, if he will stay Capper and
the sale of them but for three days, he will pay the money and {^'Iso'^^ejg
have the goods ; if B. does stay the sale accordingly, B. may a. in consider-
have an action against D. upon this agreement, for this was in ation that he
nature of a sale(c); and if D. had paid the money, he might had paid and
have brought detiime for the goods. the'defenirnt

twenty pieces of hammered money, being twenty old shillings, at his request, he the defendant
promised to pay him twenty shillings new money ; and it was objected that the property was
not altered, sed non allocat. ; for a delivery, in consideration of being pmd the value, is a sale,
yalk. 25. pi. 11. 2 Ld. Haym. 895.

If A. and B. are both solicitors for the office of under-sheriflT, Cro. Jac. 6 12.
and A., in consideration that B. will desist, assumes and pro- P^^ker and
mises to B. that if he the said A. obtains the said office, that he juj° ed!
the said A. will pay unto B, 20/. for a horse, Sfc, this is a good
consideration.

A a 3 A. has

358

ASSUMPSIT. .

Winch. 80.
(a) It seems a
strange reason ;
must not the
jjlanting imply
the groiving ?

Sid. 89. ad-
judged be-
tween Scott
and Stevens.
Lev. 71. S.C.
Roll. Rep. 27.

A. has lands in D., of which parish B. is rector, and B. in
consideration that A. will plant his lands with hops, and so better
the tythes, assumes and promises to allow him 405. for every
acre so planted ; and whether this is a good consideration,
because the tythes cannot be bettered by the planting of the
hops, but by the growing of them, dvhitatur, [a)

If A. together with B. is bound to C. for the proper debt of
B. SfC. and A. pays the money, and B. dies and makes D. his
executor, and Z)., in consideration that A. will forbear to sue
him till such a time, assumes and promises to repay him ; this
consideration is good (Z>), though D. was liable in equity only, (c)
S.P.perCroAe. (b) So if the consideration be, that the plaintiff shall release an equitable interest
only. Wells and Wells, Vent. 40. 1 Lev. 272. Thorpe v. Thorpe, Ld. Raym. 662. In con-
sideration the plaintiff would forbear to sue for a legacy. 2 Lev. 5. Vent. 120. (c) Qu. Was
not D. liable in an action of assumpsit for money laid out and paid by A. for testator in his
lifetime ?

Britten v. || Where A. drew a bill upon B. his debtor, which B. accepted,

& C ^483^^™" ^"^ ^' i"^°''sed the bill to C, and C. reindorsed to A, it having
been agreed that C. should indorse the bill to give A. C.'s security
for the acceptor paying it, the court held that A. could not recover
on the bill ; for treating it as a bill, A. by his indorsement was
liable on it to pay the amount to C, and A. could not recover
on the ground of the special agreement, since there was no con-
sideration for C.'s indorsement.

t Dow. & Ry.
€50.

Mouldsdale t.
Birchall,
2 Black. R.
.527.

Thorpe V.
Thorpe, 1 Ld.
Raym. 662.
Price v. Sea-
man, 4 Barn.

6 C. 525.

7 Dow. & Ry.
14. 1 Ry.'&
Moo. 195.

Lev. 257.
Bolton and
Fenner, ad-
judged. Sid.
S92. S. C. ad-
judged.

Mod. 25.
n4iud{j;ed be-

If A. assign to B. a debt due from C, although the amount be
uncertain, still this is a good consideration to support a promise
by B. to deliver goods to A. in payment for it.

And so also the assignment of an equity of redemption by a
mortgagor is a good consideration to support an assumjmt.

And so also the assignment of a bargain for the purchase of
an estate by the plaintiff to the defendant at his request, is a
sufficient consideration to support a promise by the defendant
to pay the plaintiff a certain price for the bargain ; and as writing
is necessary to the v.alidity of such a bargain, it may after
verdict be presumed that the bargain was in writing, though not
so alleged in the declaration. ||

If the plaintiff declares that he was possessed of several sea-
men's tickets for wages due to them, and had solicited the trea-
surer of the navy to pay them, who had ordered the defendant
his clerk to pay them, and the defendant, in consideration the
plaintiff would not give his said master any further trouble about
the payment thereof, assumes to pay them ; this is a good con-
sideration : for though it does not appear the plaintiff had any
interest in the money, or authority to receive it ; and it was ob-
jected, though he might not troulile the master further, yet the
owners might ; yet after verdict for the plaintiff, it was adjudged
for him ; for it cannot be intended but that the plaintiff had an
interest in the tickets, or authority to receive the money, else
the treasurer would not have ordered the payment thereof.

If A. in consideration that B. an infant, hath promised to
permit A, to carry away so much of his grass, ^c. assumes and

promises

promises to pay B. 6l. the consideration is good, and B. may tween Smith
maintain an action against A. upon this promise, notwithstand- ^"^ Bowen.
ing B. may avoid his promise. g q cited

and agreed. Vent. 51. S.C. adjudged. 2Keb. 581. S. C. Yel v. 154. like point per cwr. Sid.41.
Keb. 1 . S. P. Vide head of Infants.

If A, and B. are churchwardens of Z)., and C. at the prosecu- Vent. 297.
tion of A. and B. is excommunicated for not paying a tax for adjudged be-
the reparation of the church of Z)., and C. in consideration that twcen Curtis
the bishop, at the request of A. and B., would absolve him, ^"^oJ^g lIv
assumes and promises to pay unto A. and B. so much ; if C. is ng.s. C. ad-
accordingly absolved, A. and B. may have an action upon this judged, the
promise against C, for it cannot be intended but the absolution consideration
was at the instance of A. and B., and by reason of the promise Ijj^^h^g'j^ouij
to pay them the money. absolve the

mother of the defendant at the request of the defendant, which the bishop would not have
done if the plaintiffs had not accepted the promise of payment.

If B. is indebted to A. in 20/. and C. is indebted to B. in the Roll. Abr. 29.
like sum, and C. promises A. in consideration that he is content
to accept the said sum by the hands of C, and to stay for this
for four days, that he will pay him the said sum ; this is a
good consideration for A. to maintain an action upon the case
against C.

If A. is indebted 20/. to B., and dies, and his executor, in Roll. Abr. 26.
consideration that B. will forbear him for a reasonable time, But where a
promises to pay him the debt ; this is a good consideration to promise by an
have an action, with an averment that he forbore him for a cer- ajministn-itor
tain time. or an heir, to'

pay on forbearance, makes a good consideration. Vide the several titles. IjSuch promise
must be in writing, and the consideration must appear on the face of it, according to the sta-
tute of frauds, 29 Car. 2. c. 3. ^ 4.||

II So, also, if the executor promise to pay a legacy in consi- Davis v. Ray-
deration of the legatee forbearing to sue for it, this is a good "^y^^j "^90^*
consideration to support the promise. And although it is now 2 Keb. 758.
decided that an action of assumpsit will not lie against the exe- (a) Deeks v.
cutor on an implied undertaking to pay the legacy arising from Strutt.sTerm
the sufficiency of assets (a), ^-et it is not decided that an action (^x^^tklnsv
will not lie on an express promise by the executor (6), or on an nili,Cowp,
admission by him of having money to pay it (c) ; and therefore, 284.; sedvide
on forbearance in either of these cases, and certainly in case of ^ Bam. & C.
forbearance to sue for the legacy in the spiritual court, or in , . Gorton v
equity, a promise founded on such forbearance would be still Dyson, 1 BrJ.
binding. &B. 219. See

2 Will. Saund. 137. (5th edit.)

As forbearance to sue implies a right of suit, unless the party Loyd v. Lee,
forbearing has a good cause of action at the time of the promise to 1 Str«- 9^.;
pay the debt, the promise is without consideration, and not bind- "J^^t^y Cen-
ing. Thus where a married woman had given a promissory note ng^^ 2 Term
as ajeme sole, and after her husband's death, in consideration of R. 763., that a
forbearance, promised to pay the money, Pratt C.J. held that security abso-
an action would not lie against her, since the note being abso- j."n^noj^be re-
lutely void, there was no right of action against her at the time yj^ej [jy a
of her promise. subsequent

promise. In Lee v. Muggeridgc, 5 Taunt. 45. Mamfivld
A a 4. ^- J-

360

ASSUMPSIT.

C.J. and Gibba J. alluding to Loyd v. Lee, said, " The consideration averred (forbearance)
did not exist ; but it did not follow that no other consideration could have been stated that
would have supported the promise."

Jones V. As>h-
bnrnham,
4 East, 455.;
but see Mar-
shall V, Birk-

Barber v. Fox,
sSaund. 155.

Longridge v.

Ddrville,

2 Barn. & Aid.

117.

Phillips v.
Bateman,
16 East, 356.

So also where the declaration stated that A. 13 , deceased,
was indebted to the plaintiff in a certain sum of money, and
that in consideration that phiintiiF would forbear and give
time of payment of the debt (without stating to whom, or
enshaw, iNew shewing any liability in any one to pay it), the defendant under-
172. took to pay it, it was held on demurrer that no consideration for

the promise appeared ; since unless some person were liable to
be sued for the debt, the plaintiff' did not forbear to sue.

And, on the same principle, forbearance to sue the heir on a
bond of his ancestor, in which he is not named, is no consider-
ation to support a promise by the heir to pay the bond ; for
unless the heir is named, he is not liable on the obligation,
though it is otherwise as to the executor.

The abandonment of a suit by the plaintiff where the ques-
tion of law is doubtful, and not clear in favour of the plain-
tiff^ has been decided to be a good consideration for a promise
by the defendant to pay a specific sum of money.

Where the defendant, on occasion of a run on a banking
house, came forward and told the holders of notes waiting for
payment, that he had determined to support the bank to the
extent of 30,000/., whereupon the holders kept back some of
their notes, and the defendant afterwards signed a written paper
to the same effect; it was held, that he was not liable to an action
by an individual holder on this promise, since admitting that the
promise amounted to an engagement to each individual holder,
which the court thought it did not, still it was without consider-
ation ; for no forbearance was agreed on, and each holder
might have immediately sued for his claim. ||

[If a debt be due in conscience, though the remedy at law for
recovering it may be gone, it is a good consideration for a pro-
mise. Thus a promise to pay a debt barred by the statute of
limitations ; a promise by a man when he comes of age to pay
a meritorious debt contracted duripg his minority, though not
for necessai'ies ; and a promise by a certificated bankrupt to pay
the whole of his debts ; all these siiall bind, for the obligation in
conscience is not extinguished.]
rupt only promises to pay when able, the promise is conditional, and the plaintiff must prove
his ability. 2 H. Black. 110. Loughborough C. J. diss.^

Lee V. Mug- || And on the same principle of a moral and conscientious

gmdge, obligation, where a married woman having an estate for her

5Taunt. 55. . i • ■ i i ''i c ^■

separate use during coverture, with an absolute power of dis-
posing of it by will, gave a bond to the plaintiff for securing
money lent by him at her request to her son-in-law, and after
her husband's death promised that her executors should settle
the bond, an action of assuinpsit was held to lie by the plaintiff*
against the woman's executors on this promise ; not on the
ground of forbearance to sue, since she was not legally liable ;
but on the ground of her moral obligation to pay the money

advanced

fi Black. Com.
445. Hawkes
v. Saunders,
Cowp. 290.
Truemau v.
Fenton.Cowp.
544. llSee
1 Stark. 370.
4 Taunt. 615.
If the bank-

(D) Where the Consideration is ej:ecuted^ or continuing. SCl

advanced at her request, which operated as a sufficient consider-
ation to support her promise when discovert.

And where A. paid to B. the whole of a demand claimed by Lord Suffield
B., but part of which was due to C, and B. after the payment v. Bruce,
engaged to indemnify A. against any demand of C, Lord 2 Stark. Ca.
JLUenhorongh held that the receipt of the whole money formed
a sufficient moral consideration for the promise of B.

But though a moral obligation is in some cases sufficient Atkins v. Ban-
consideration to support an express })romise, it is never held to ^^^'^ 2 East,
have the effect of raising an implied promise. 1| Wennal" v*'^^

Adney, 3 Bos. & Pull. 247., and the note of the learned reporters. Watson v. Turner, Bull.
N.P. 129. Wing V. Mill, 1 Barn. & Aid. 104. ',, . • /, ,

[Mutual promises must be both binding as well on the one Harrison v.
side as on the other, else they will be nuda pacta. Where an Cage, Salk. 24.
action was brought on a bet of fourteen guineas to eight guineas p '^^ ^ \Vils
on a horse-race, it was holden, that as the plaintiff might have 309! ||But
refused under the statutes of 16 Car. 2. c. 7. and 2 Ann. c. 14. under the nth
to pay the fourteen guineas, if he had lost, there was no mutu- section of the
ality in the wager, and therefore he could not recover the {Va„js^ a con-
eight guineas. tract for the
sale of goods is binding on the party signing, though it would not be binding on the other
party for want of his signature. Egerton v. Matthews, 6 East, 507. 1|

So where A., having proposed to sell goods to B., gave him a Cooke v.
certain time at his request to determine whether he would buy Oxley, sTerin
them or not, within which time B. determined to buy them, and *
gave notice thereof to A. ; A. is not liable to an action for not
delivering them ; for B. not being bound by the original con-
tract, there was no consideration to bind A."]

11 But where there is an actual sale by a broker, and a sale Humphries v.
note delivered to the buyer, but with an option to him to Carvalho,
renounce the contract by a day named, and he does not do so, ^^^ ^e' Adams
the sale becomes absolute, and the seller cannot disaffirm it after v. Lindsell,
the time is elapsed. || 1 Barn. & A.

681.

(D) Where the Consideration shall be said to be exe-
cuted or continuing.

^ CONSIDERATION altogether executed and past is not Roll Abr. 11,

ffood to maintain an assumpsit : but if it were moved by a ^^- Several
I ^ ^ .^ . J -^ , ^ ^ • r V • cases to this

precedent request, it is good, and amounts to a promise ; lor it is pi,rpose_ guU,

not reasonable that one man should do another a kindness, and Ni.Pij. 145.
then charge him with a recompence («) ; for this would be (4th edit.)
obliging him whether he would or no, and bringing him under ^^tokes v.
an obligation without his own concurrence, {b) R. 2i.'l|An

affidavit to hold to bail is bad, unless it state the goods sold, money lent, &c. to be at the de-
fendant's request. 5 Maule & S. 446.11 [(«) ^^ ^ '"^" yiork for another merely with a view to
a legacy, be cannot afterwards resort to an action upon an implied assumpsit. Osborn v. Go-
vernors of Guy's Hospital, 2 Stra. 728. (b) If a person pay money which another was under
a legal or moral obligation to pay, though mlhout his knowledge or request, the law raises an
n.uamj)sit : as in the case of goods distrained by the commissioners of the land-tax, if a neigh-
bour should redeem the goods, and pay the tax, he may maintain an action against the owner

for

1 1 ,

36"^

ASSUMPSIT.

for the money so paid : so if a person bury the wife or child of another, he may recover back
the expenses incurred by it from the father or husband. Jenkins v. Tucker, 1 H. Black. R. 90.
Church V. Church, B. R. 1656, cited in Sir T. Raym. 260. Nor is it any bar to such an action
against the husband, that the wife lived apart from him, and had a separate maintenance, for
at her death the separate maintenance is at an end. Anon. B.R. M. 3lG. 3. reported in
Vaillant's edition of Dyer, 272. b. note b.j

Exall V. Par- || If a stranger has goods on a tenant's premises, which are

tridge,8Term distrained for rent in arrear from the tenant, and the stranger
pay the rent to redeem his goods, he may recover the amount
from the tenant as money paid to his use; for the compulsion is
tantamount to a request, {a)

R. 308.
(a) Otherwise
in case of an
under-tenant.
1 1 East, 52.
Crafts V. Trit-
ton, 2 Moo.
411.

Toussaint v.
Martinnant,

But where the plaintiff became surety for his brother in a
mortgage bond for the repayment of 300/., for which the brother
mortgaged his estate to A. for a term of years, and the brother
afterwards by indenture, to which the plaintiff was no party, sold
and conveyed the estate to the defendant, who engaged to pay
off the mortgage money on the mortgagee's assigning over the
mortgage term; and the defendant also covenanted with the
brother to indemnify him and the plaintiff against the mortgage
money, and the defendant afterwards failed in paying the mort-
gage money when demanded by the mortgagee, whereupon the
plaintiff paid it to the mortgagee ; it was held, that the plaintiff
could not recover such money from the defendant as money paid
to his use, since there was no privity between the plaintiff and
defendant in the transaction, the defendant was never substituted
as principal, and the plaintiff never became surety for him in
lieu of his brother, and therefore the plaintiff paid the money in
discharge of his liability as surety for his brother.

A surety compelled to pay the whole debt, may recover it as
money paid from the principal debtor ; and a co-surety compelled

sTermR. 100. to pay the whole may recover against his co-sureties their re-

Cowell V' Ed- spective proportions on the imphed request by them to pay what

& Pull. 288. * ^^^y were liable for.

Deering v. Lord Winchelsea, lUd. 270. ; sed vide 2Espin. 278.

Merrywea- So also if a plaintiff recover in an action of contract against

ther v. Nixon, ^.^.^ defendants, and levy the whole damages against one, that one
8TermR.186. ' • ^ • . .u .i "• '^ .• r

may recover a moiety against the other in an action tor money

paid to his use; but it is otherwise if a party recover against
two in an action o^ tort.

And if one of the two parties, jointly liable to a third, on
application to pay the demand submit the matter to arbitration,
and then pay the sum awarded, though without the privity of
the other party, he may recover a moiety from such other party
as money paid to his use.

And one joint contractor paying money merely due in equity
Eyre, I Marsh, from both, may recover in assumpsit a moiety from the other as
money paid to his use.

But the plaintiff can sue for money paid, ^c. only when he has
actually paid money, and not where he has merely been com-
pelled to give security for another.

Burn ell v.
Minot, 4 Moo.
R.540.

Hutton V.

Taylor v. Hig
gins, 3 East,
169. Maxwell
»v. Jameson,

2 Bam. & Aid. 51., which over-rule Barclay v. Gouch, 2 Espin. R. 57.

(D) Where the Consideration is executed, or continuing. 363

If an officer, at the request of a prisoner, permit him to go at Pitcher v.
large on his promise to pay the creditor the debt, and the Bailey, 8 East
prisoner absconding, the officer is compelled to pay the debt ^'^'
himself, he cannot recover the money as paid to the use of such
prisoner; since, although for the prisoner's benefit, it was not
paid under any implied request from him, but in consequence of
the officer's breach of duty.

If a carrier, by mistake, deliver goods to the wrong person. Brown v.
who appropriates them, and the carrier is compelled to pay the Hodgson,
price to the real consignee, he may recover the amount from the ^ laimS'^^*'
person to whom they are delivered as money paid to his use. Ellenborouah
held, in a similar case, that the declaration should be special ; and certainly the car-
rier's liability to pay is not incurred at the request or on behalf of the defendant ; but in
consequence of his own mistake. Sells v. Laing, 4 Camp. 81. ; and see Longchamp v, Kenny,
Dougl. 137.

But where the plaintiff, as churchwarden, and a number of Lanchester v.
parishioners signed an order authorizing the churchwardens to Frewer,
put a new roof to the tower of the church, and the plaintiff and 2Bing.R. 36i.
the other churchwarden accordingly ordered the repairs, and
made a rate on the inhabitants to reimburse themselves, the rate
being quashed on appeal, the plaintiff sought to recover a pro-
portion of the expenses paid from the defendant as one of the
parties signing the order ; it was held, the action would not
lie, since there was neither any express or implied assumpsit on
the part of the defendant to pay the money, and the church-
wardens would have been repaid if they had made a proper
rate. ||

If the servant of A. be arrested in London for a trespass, and Dyer, 272.
J. S.i who knows J., bails him, and after A. for his friendship, ^j • ^^'^' ^J'
promises to save him harmless, and J. S. comes to be charged; Owen 144.
yet this is no consideration to ground an assumpsit on, because Yelv. 41,
the bailing, which was the consideration, was past and executed 2 Stra. 935.
before, (a) ^^bTJ^'

S Burr. 1663. 11(a) But see Lord SufBeld v. Bruce, 2 Stark. 175.||

But it had been otherwise if the master had before requested Dyer, 272.

him to become bail for his servant, and the bailing had been Jr?'!;^*^'""^^*

f. ,7N ^ ° (A) Hob. 106.

after. (Z») S.C.andS.P.

cited and agreed, because the promise is not naked, but couples itself with the precedent re-
quest, and the act of the party procured by that request. 2 Leon. 225. S. C. cited and agreed,
Cro. Car. 409. S. C. cited arguendo, and S. P. agreed to per curiam.

So, if a man requests another to labour for his pardon, Sfc, Rol'- Abr. 1 1.
and after he has done his endeavour, if the other says, in con- ^ S?'^'j^^^^" .
sideration that he has laboured for his pardon at his own 8. S. C. Hob*
charge, he promises to pay him so much, Sfc, this is a good 105. S.C.
consideration. Stile, 465. S.P.

If A. serves B. for a year, but has nothing for his service (c), 2 Leon. 225.
and afterwards at the end of the year, J5., for his good and faith- Godb.ss.S.C.
ful services, assumes to pay him 10/., A. may have an action Cro. Eliz. 42.
upon the case upon this promise against B., for the consider- ./ ^'^] "'
ation is good. has J^^g^

given him, and after his service ended, his master ex abundatUid promises to pay him 10/. more,

364 ASSUMPSIT.

he shall not have an action on this promise, because there is no precedent consideration.
2 Leon. 225. Hutt. 84.

Taylor v. ||In the last case there was an express promise to pay a cer-

^M^T'/m ^^'" sum; but if A. work for a committee, under a resolution
290^Jewry v. ^'^^^ ^"X service rendered by him shall be taken into con-
Busk, 5 Taunt, sideration, and such remuneration made as shall be deemed
302. right, in this case he cannot sue for his recompense, for the

resolution imports that the committee are to consider whether
any remuneration is due; but if a party do work under promise
of a handsome present he may sue for compensation. ||
Leon. 102. If A. leases lands to B. for a certain term of years, rendering

Pearl and Ed- rent, and after some of the years expired, and the rent paid, A.,
wards ad- j^^ consideration that B. had occupied the land and paid his

Eliz. 94. S. C. rent, assumes to save him harmless against all persons for his
adjudged, and occupation past and to come ; if afterwards the cattle of B. are
said the con- distrained damage-feasa7it, he may have an action upon this

sideration that promise against A, ; for the occupation, which is the consider-
he was in pos- ^ . *=>. ' r j

session, and ation, contmues.

had paid, and was to pay his rent, was a sufficient cause for A. to defend his possession for the
time to come. ||But where the declaration stated, that in consideration B. had become and
was tenant to the plaintiff^ he undertook to cultivate the farm in a certain manner, the declar-
ation was held bad on demurrer, as the consideration was executed, and did not necessarily
raise any such obligation as was stated. Brown v. Crump, 1 Marsh. R. 567. 6 Taunt. 300. |1

2 Leon. 111. If there be a communication between A. and B. concerning a

. " M ''^ii "^^rriage to be had between A. and the daughter of J5., upon

and Rainsford. which B. offers him 200/. with his daughter in marriage ; but

Leon.i02.S.P, they cannot agree upon the day of payment, and afterwards A.

(a) A good steals away the daughter of jB., and marries her without the

consideration consent or knowledge of B., and after B. agrees thereto, and in
to raise an use •. .^. At'

but not an as- consideration of this marriage assumes to pay 1 00/. to A. ; this

sumpsit. Cro. is a good promise, upon which A. may have an action against B.

Eliz. 756. for the natural affection of the father (a), and the advancement

^gTeedpercur. ^f j-j^g daughter (h\ make this a consideration continuing, (c)
Carth. 141. o v /' o \ /

arguendo, [b) Marriage is always a continuing consideration. 2 Leon. 224. per Anderson.

Godb.51. Cro.Car. 409. Hut. 84. Cro. Eliz. 741. (c) A serjeant at law gives counsel to^.

who afterwards, in consideration thereof, assumes to pay him 20/., an action lies thereupon.

2 Leon. 111. per Popham. Cro. Eliz. 59. said. [Qu. of this ?]

2 Keb. 99. In consideration that he had paid money for the defendant^

and obtained a release of his debt, was held a continuing con-
sideration, because the benefit of it was continuing to the party.

Warren v. [Where the plaintiff declared, that in consideration he had

Morse,^Cro. bought three parcels of land on such a day, the defendant after-
wards promised to make him a sufficient assurance; the con-
sideration was adjudged not to be absolutely past, for the
assurance was the substance of the sale.]

(E) Where the Promise shall be void, the Consider-
ation being against Law.

A S all considerations are deemed insignificant and void, that
are not of some benefit to the promiser, or loss to the pro-
misee ;

Eliz. 138.

(E)

Where the Consideration is acaainst Lau\ 365

to"

misee ; so if they are wicked and ill in themselves, or unlawful

by being prohibited by some act of parliament, they are void ;

therefore,

If an officer, who by the duty of his office is obliged to exe- jjou Abr. 16.

cute writs, promises, in consideration of money paid him, to RoU.Rep. 315.

serve a certain process, an assumpsit will not lie on this pro- S. P. adjudged.

mise (a) ; for the receipt of the money was extortion, and the ? ^o"**.'"^'"-

.^, . 1 /• 1 "^ ation beiti",

consideration unlawtul, that he would

serve a tie exeat regno, [(a) The like law on a promise of a bribe to a bailiff for taking bail.
Stotesbury v. Smith, 2 Burr. 924. 1 Black. R. 204. S. C] jjOn the same principle a promise
by the captain of a ship to pay a sailor extra wages in consideration of his doing more than the
ordinary duty in navigating the ship, is void, and the sailor cannot sue on it. Harris v. Watson,
Peake's Ca. 72. So, also, where in the course of a voyage some of the seamen deserted, and
the captain not being able to find others to supply their places, promised to divide the wages
which would have become due to them among the remainder of the crew, the promise was
held void for want of consideration. Stilk v. Myrick, 2 Camp. .31 7. |1

So if an executor sues execution by elegit, and B. a stranger, Roll. Abr. is.
as a friend to the executor, in consideration that the sheriff" Cro.Jac.i03.
M'ould forthwith execute the said elegit, and of 6d. to him by the ^'-Pg ^^{"''"J'''
sheriff' paid, promises to pay him 60/., upon which the sheriff* riff sufFer one
executes the writ ; yet no action lies, because the consideration that he has ar-
is against law {h) ; for the sheriff* ought to do his duty without rested to es-
reward, and this 60/. is no discharge of the fees due to the sheriff*, '^^PP' o" the
being given by a stranger (c), and not expressed for them. stran<Ter to be

paid so much mone}', yet no action lies on this promise. Salk. 28. pi. 1 7. Vide head of
Sheriff, (c) Otherwise where given by the plaintiff himself Roll. Abr. 26. [But the case in
Rolle does not warrant this j it is as follows : — " If A. delivers an execution to the sheriff at
his suit against B., and in consideration that the sheriff without any fee will execute it, pro-
mises the sheriff to pay to him a certain sum, which is as much as the sheriff is allowed to take
by the statute of 28 Eliz. ; though it be admitted that the sheriff cannot have any remedy for
his fees, yet because it was lawful for the sheriff to take his fees, and he made the execution
at the plaintiff's request, and this is for his benefit, this is a good consideration." By the
reports of this case in Moor and Croke it appears, that the sheriff declared for the money, as
for his lawful fees of office under the statute : in the other case in the text, he declared for a
gross sum for executing the writ ; thence the difference between the cases as to the legality
of the consideration, the present subject of enquiry; for it would not affect the consideration
in that respect, whether the promise were made, or the money were to be paid by the plaintiff*
himself, or a stranger. Cro. Eliz. 654. Moo. 468. p. 669. 699. p. 972.] ||And if the sheriff*
take a larger fee than is due on a warrant issued by him in execution of his office, it may be
recovereil back as money had and received to the use of the party paying it. Dew v.
Parsons, 2 Barn. & A. 562. ; and see Morgan v. Palmer, 2 Barn. & C. 729. ||

But if a man brings a capias that he has against A. to the Roll. Abr. 16.
sheriff*, and prays him that he will make J. S. his special bailiff^ Leon. 132.
and promises him, if he will make him his special bailiff, that if ^ ^^.'-^^J'

A r II n-rr 1 -11 1 • • r xi Cro. EllZ. 178.

A. escapes rrom the bailitt, he will bring no action tor the escape Owen.97.S.C.
against him; this is an assumpsit upon which an action lies, if adjudged,
he brings any action against the sheriff for the escape. 4 Term R. 119.

So where the sheriff takes goods in execution upon Q.Jieri Salk. 28. pi. 17.
facias, and a stranger promises the officer to pay him the debt, adjudged on
in case he will restore them; this is a lawful consideration, for Love's case,
by tlie Jieri facias he may sell the goods, and this in effect is
doing no more.

If ^., in consideration of some benefit, promises not to set up r/de Roll. Abr.
or follow the same trade with the plaintiff in such a town, j^» /J^*,^'"*'*,
this is a good promise; but if the promise were not to set up or 2Ba\sit. 136.

366

ASSUMPSIT.

Jones 15 follow the same trade in any part of the kingdom, it would be

Fortesc. 297. void.

March, 77. 2 Roll. R. 201. 2 Ld. Raym. 1456. 2 Stra. 739. 5 Bro. P.C. 349. |jBunn v.
Guy, 4 East, 190. So a bond given by a surgeon not to practise within twenty miles, was
held not to be illegal. Hayward v. Young, 2 Chit. R. 407.||

RoU.Abr. 18.
Cro. Car. 557.
553. 361. S.C.
1 Jon. 341.
S.C.

Parsons v.

Thompson,

1H.B1.322.

Garfbrth v.
Fearon, M.
27 G. 3. 1 H.
Black. R. 527.

If A., being a clerk, promises B., in consideration that B. will
procure him to be rector of a donative church, with cure of souls,
to pay 10/. to B. ; this is no good consideration to maintain an
action, for this is simony, and an offence against the laws of God
and man.

[Where A. was in possession of an office in a dock-yard, and
B., in order to induce him to procure himself to be superannu-
ated, and retire on the usual pension, agreed (without the know-
ledge of the navy-board to whom the appointment belonged) in
case he (B.) should succeed him to allow him his extra pay
from the yard-books; and B. was afterwards appointed to the
office; it was holden, that an assumpsit would not lie upon this
agreement, the consideration being illegal, as a fraud upon the
public, and an injury to the service.

So where A., who was appointed by the interest and on the
application of 5. to be customer of a port, had previously signed
an agreement declaring that his name was used on the applica-
tion in trust for B.^ that he would appoint such deputies as B.
should nominate, and would empower B. to receive the profits
of the office to his own use; it was holden, that the consideration
in this case would not support an assumpsit, being equally against
the principles of the common law, and the statute of the 12 R. 2.
c. 2. and 5&6E. 6. c. 16.

So a promise to pay 2/. per cent, to procure a purchaser of
defendant's place in the customs is bad, and will not raise an
assumpsit."]

II So also a promise to pay to the plaintiff a sum of money on
a person being appointed to succeed him in the command of an
East India ship, in consideration of the plaintiff paying 5000/. to
the owner for the appointment, without the knowledge of the
East India Company, was held bad, the consideration being
illegal. II

5 Id. 334. Hughes v. Statham, 4 Barn. & C. 187. It seems that an
agreement to introduce a man to a partnership with a medical practitioner, in consideration
of a per centage on the premium to be paid is not illegal. Edgar v. Blick, 1 Stark. Ca. 464.
But an agreement to allow poundage to a person upon the amount of bills of all customers
recommended by such person has been held a fraud on the customers, and illegal. Wyburd
V. Stanton, 4 Esp. Ca. 179. ; and see 1 Carr. & Pa. 149. A contract between a brewer and
a publican, that the publican shall take all his beer of the brewer, cannot be enforced by the
brewer, unless he shew that he supplied the publican with good beer. Holcombe v. Hewson,
2 Camp. 591. ; and see Thornton v. Sherratt, 8 Taunt. 529.

Stackpole v.
Earl, 2 Wils.
133.

Blachford v.
Preston,
8 Term R. 89. ;
and see Card
V. Hope,
2 Barn. & C.
661. Richard-
son V. Mellish,
2 Bins. R. 229

Cro. Eliz. 230.
Mead and
Bigot ad-
judged. 3 Leon.
236. S.C. ad-
judged.

A. levies a plaint in the court of Stepney against B., upon
which a precept is directed to C. the bailiff there, to attach the
goods of B., and thereupon C. attaches certain of the goods of
jB., and A., in consideration that C. will deliver those goods to
him to deliver at the next court, assumes and promises to save C.

harmless,

(E) Where the Consideration is against Law, (Wagers.) 367

harmless, Sfc. the consideration is void, being against law ; for
the bailiff ought not to deliver them to the plaintiff.

If ^., being seised of lands in fee, enters into a recognizance Cro. Eliz, 551.
to J5., and after makes a feoffment of those lands to C, who, in Barrow and
consideration that B. will assign to him the recognizance, assumes ,^^^l^ . ,
and promises to pay him 80/. ; this is a good promise, tor the ^^Imt is al-
consideration being to assign to the terre-tenant, it operates by legeil respect-
way of discharge, and is clearly lawful; otherwise of an assign- ingastranger?
ment to a stranger, (a)

If A. brings B. to a common inn, of which C. is host, and Yiut. 55. ad-
affirms to C. that he hath arrested B. by virtue of a commission judged be-
of rebellion, and in consideration that C. will keep B. as a tween Fletcher
prisoner by the space of one night, assumes and promises to save ^" . Harcourt.
C. harmless, Sfc. if B. recovers against C. in an action of false s.Cadiud'^ed*
imprisonment, C. may have an action against A. upon this pro- but Hobart
mise ; for though the consideration, viz. the keeping of B. was said, perhaps
unlawful, yet because it did not appear to C. to be so, the pro- ^ y^ "\^^ ^®
mise to save him harmless was good. where a public

officer, and where a private man (as in a principal case) makes the arrest ; but because the
defendant had pleaded non assumpsit, which implied that the imprisonment was lawful, he
agreed judgment should be given for the plaintiff.

But if it appears that the act which is to be done is unlawful, Hut. 56.
as ii' A., in consideration that B. will beat C, promises to save c p j s p
B. harmless, the consideration is void. ' ^^ Huttm.

2 Lev. 174. like point adjudged, where the defendant, in consideration of 20*., assumed to pay
405. if he did not beat J. S. out of such a close. [So where two boxed for a wager of five
guineas ; on assumpsit for that sum brought by the winner, it was holden that the action would
not lie, the act being a breach of the peace. Webb v. Bishop, Gloster Ass. 1731. Bull.
Ni. Pri. 16.] II And an action will not lie on a wager whether an unmarried woman has had
a child, Ditchburn v. Goldsmith, 4 Camp. 152.; nor on a wager as to the sex of a third person,
De Costa v. Jones, Cowp. 729 ; nor on a wager on an abstract question of law, or judicial
practice, not arising out of circumstances really existing, and in which the parties have an
interest, Henkin v. Guerss, 12 East, 247. 2 Camp. 408.; nor on a wager as to the amount of
any branch of the public revenue, Atherfold v. Beard, 2 Term R. 610. Shirley v. Sankey,
2 Bos. & Pull. 130.; nor on a wager that plaintiff would not marry within six years, since this
is in restraint of marriage, and void. Hartley v. Rice, 10 East, 22.; nor on a wager between
two voters on the event of an election of members of parliament, Allen v. Hearn, 1 Term R.
56.; nor on a wager on a cock fight. Squires v. VVhisken, 3 Camp. 140., or a dog fight,
Egerton v. Furzeman, 1 Ry. & Moo. 213.; nor on a wager on a horse race, if the sum betted
by either party be above 10/., Goodburn v. Morley, 2 Stra. 1159. Blaxton v. Pye, 2 Wils.
309. Clayton v. Jennings, 2 Black. R. 706. ; or if the horse race is ruu for less than 50/.,
though the sums betted be under 10/., Johnson v. Bann, 4 Term R, 1. ; nor although the sum
run for is above 50/. unless the race is a bona fide horse race on the turf, Ximenes v. Jaques,
(> Term R. 499. Whaley v. Pajot, 2 Bos. & Pull. 51. But if neither of the sums betted on
a horse race amounts to 10/. and the race is run for 50/. or upwards, an action lies on the
wager. M'Callester v. Haden, 2 Camp. 438. It seems that a wager between two proprietors
of carriages for conveying passengers, that a given person shall go by one particular carriage
and no other is illegal. Eltham v. Kingsman, 1 Barn. & A. 683. An action will lie on a
wager, whether the defendant be older than the jilaintiff. Hussey v. Crickett, 3 Camp. 168. ;
and a wager as to the identity of a third person is not illegal. Bland v. Collett, 4 Camp.
157. A wager on the length of life of Buonaparte (then First Consul of France) arising out of
a conversation as to the probability of his coming to a violent end, was held void on the
grounds of immorahty and impolicy. Gilbert v. Sykes, 16 East R. ISO.JI

[If A. promise B. money in consideration that he will not give i Leon. iso.
evidence in a cause, such promise cannot be enforced, for it is op*""" ^'^'
unlawful and iniquitous so to suppress testimony.]

368 ASSUMPSIT.

Yelv 197. ad- ^^ ^' '^ •" execution at the suit of B., and C, in consideration
judged be- that the gaoler will permit A. to go at large, assumes and pro-
tween Marten mises to him {a) that A. shall pay the debt at a certain day, and
^"n l^^"^'""'!"' that he, the said C, will save the gaoler harmless, the promise is
and Gocib. void, because the consideration is against law.
250. S. C. adjudged, the promise being to pay tbe gaoler money. Het. 175. S.P. 10 Co.
102. S.P. agreed per Wray C.J. and that if such promise was not void by the common law,
it is made void by the statute 23 H. 6. c. 9. Cro. Eliz. 199. adjudged. 3 Leon. 208. adjudged.
[It could not be void by the statute, for that does not extend to parties in execution, but
speaks only of persons arrested on mesne process. 1 Term R. 421.] (a) But such promise to
the plaintiff is good, for he may lawfully discharge him. Cro. Eliz. 190. adjudged. jjAnd it
does not require writing, since the debt is discharged by setting at liberty, and consequently
the debtor is no longer liable.||

Sid. 132. Keb. l[ A. is arrested, and C, in consideration that the bailiff will

483. S. C. suffer A. to continue in the house of C. till the next morning,

y'i ^A '.;J assumes and promises them to deliver him in safe custody to the
adjudged, wm, t . , r. , r- . i n i • i i

the promise bailiit; the consideration is lawml, for it sliail not be intenuecl

being to de- that the bailiff was ever absent from B., so that it could be no
liver him or escape,
pay 10^. and '■

the action being brought by the plaintiff himself, who declared upon a promise to the bailiff ejr
parte queren.; so that if he was out of custody, it must be intended by the assent of the
plaintiff, because the promise was made to the bailiff ex parte qucrentis ; and by bringing the
action he hath affirmed his assent. [The reason is, that the promise being made to the plaintiff,
or to one on his behalf, is not within the statute of 25 H. 6. c. 9., for the illegality of the con-
sideration in this case arises merely upon that statute. Therefore it is, that undertakings by
attorneys for the appearance of a defendant are enforced by the courts, for they are given to
the plaintiffs in the action. But where any engagement is entered into for this purpose with
the sheriff, it must be in the particular form chalked out by the statute, otherwise it is void.
Accordingly it was holden, that an agreement in writing to put in good bail for a person
arrested on mesne process at the return of the writ, or surrender the body, or pay debt and
costs, made by a third person with the bailiff of a sheriff, in consideration of his discharging
the party arrested, was void by the statute of H. 6.; for, since the passing of that statute, the
usage has been to take the security by bond ; and that bond, by the words of the statute, must
be entered into to the sheriff^ or to such officer as has the return of process ; whereas here
was no bond, but a mere simple contract, and that with the sheriff's officer ; and farther, the
bond must be given only for the appearance of the party, and for no other purpose. Rogers
v. Reeves, I Term R. 418] ||See 4 East, 568. 4 Maul. & S. 335., and post. tit. J?ai/.||

Mod. 166. ^^ ^^^® father of A. was indebted to B., and A. promises B. that

Gilb. Evid. 68. if he will bring two witnesses before a justice of peace, who

Cro. Eliz. 469, upon their oaths shall depose that the father of A. was so in-

470. bis. Like (jebted to B., that then he will pay it ; if B. does produce his wit-

the"consider- nesses, S^c. he may have an action upon this promise against A.,

ation was to for the consideration is not unlawful, nor the oath profane ;

take such oath adjudged by two judges against Vaughan^ who held that such an

before the oath, illeffallv administered and taken, was within the statute of

mayor of hon- ,, o •' .

don. Brett and profane swearing.

Pretiman, like point, Sid. 283. adjudged. Raym. 155. adjudged. Keb. 26. 44. adjudged ; where

the consideration was to take such oath before a master in chancery, 2 Sid. 1 23. like point

adjudged ; where the oath was to be taken before a master in chancery ; and a like point

there cited to have been adjudged, where the oath was to be taken before a judge of assise.

Sid. 212. Keb. If A. obtains a judgment against B. in the marshal's court, and

^^'*' afterwards, in consideration of money in hand paid, assumes and

promises to assign this judgment to C. ; this is a good promise,

for it is lawful so to do, and the intent must be that it shall be

assigned according to common usage, viz. by letter of attorney,

(E) Where the Consideration is against Law. 369

so that C. may take out execution in the name of A. which may
be done without any maintenance.

1^ A. obtains a judgment against jB., and thereupon takes out 2 Jones, 29.
an elegit, and delivers it to the under-sheriff, who by virtue adjudged be-
thereof seizes certain goods of B., and afterwards the under- tween Morns
sheriff, in consideration that A. will take out a new elegit, and Carter, 223.
deliver it to him, promises to cause and procure the said goods S.C. adjudged,
to be found by inquisition, and to deliver the same to such person
as A. shall appoint, 8fc. ,- this promise is against law, being to do
a thing against the duty of his place, by which he is bound to
return an indifferent jury ; and though part of the promise was
to do a lawful act, yet since that depended upon the other part,
which was illegal, the whole is naught.

[If a performer engage to dance at the King's Theatre in the Gallini v. La-
Ha?/ Market, yet no action will lie against liim for a breach of borie, 5 Term
the agreement, if it appear that the theatre was not licensed *
pursuant to the 10 G. 2. c. 28. But in such case the performer
may recover from the manager the salary which he had stipu-
lated to pay for him ; for being engaged and ready to execute
the agreement on his part, he ought not to suffer for the want
of a licence, which it was the manager's business to have pro-
cured.

Money lent for the purpose of paying a gambling debt may Barjeau v.
be recovered back, for the statute of 9 Ann. c. 14. only annuls Walmsley,
*u -^ J \ ^1, J ^ 2 Stra. 1249.

tne security, and not the contract. Robinson v.

Bland, 2 Burr. 1080. Alcinbrook v. Hall, 2 Wils. 309. ||See 3 Barn. & A. 1 79. and^os^, 373.11

Where the plaintiffs, who were merchants living at DunJcirJc, Holman v.
sold tea to the defendant tha-e, and delivered it to him there, Johnson,
though this tea was so sold for the purpose of being smuggled ^owp.34i.
into England, and that purpose was known to the plaintiffs at the
time; yet they not being concerned in the smuggling, and it
being a fair sale as to them, and good by the laws of the country
where they lived, they were allowed to recover the price of the
tea in Etigland.

But where the plaintiffs were four partners, three of whom Biggs v. Law-
lived in England, and the fourth in Guernsey, and this last sold rence, 3 Term
brandy at Guernsey, packed up in a particular manner for the nYvraymell v.
purpose of smuggling, but without the privity or personal parti- Reade, 5 Term
cipation of the others ; in an action brought for the price of this R. S99.||
brandy, they were nonsuited : for in this case the parties were
natives of England, and the contract was made in contravention
of the laws of England ; whereas in the case of Holman v.
Johnson the contract was made abroad by foreigners, who are
not bound to take notice of the revenue laws of this country.

So where the plaintiff, an inhabitant of Guernsey, sold goods Clugas v.
to the defendant in Guernsey, which it appeared were to have P^'al'ma,
been smuggled into England, and the defendant gave bills, on * Term R. 466
which an action was brought for the price ; it was adjudged,
that the plaintiff could not recover, for the bills were given
on an illegal contract, and to a subject of this country.]

Vol. I. B b ||So

370

ASSUMPSIT.

Lightfoot V.

Tennant,

1 Bos. & Pull.

551.

Langton v.
Hughes,
1 Maule & S.
593. ; and see
Law V. Hod-

II So also if the plaintiff agrees to sell to the defendant goods
for the express purpose of being shipped, with the plaintiff's
knowledge, to a foreign port, and from thence reshipped to the
East Indies, and there trafficked with clandestinely, contrary to
7G. 1. c. 21., and a bond is given by the defendant to the
plaintiff for securing the price ; a plea stating this illegal agree-
ment, is a good bar to an action on the bond.

So also a druggist selling drugs to a brewer, knowing that
they are to be used in the brewery, cannot recover the price, the
42 G. 3. c. 38. prohibiting brewers from using any articles but
malt and hops in brewing,
son, 1 1 East, 50o.

Hodgson T. It has, indeed, in one case been held, that the mere knowledge

Teniple, of the seller that the goods are to be illegally employed will not

But^tWs case' P^*^^^"^ ^^^ recovering the price, unless he is a sharer in the
is inconsistent illegal transaction. And a vendor of spirituous liquors to the
■with the prin- defendant a rectifying distiller, who also kept a retail spirit shop,
ciple of the ^as suffered to recover the price of the liquors, though he had
andThe^cas'e knowledge of the defendant's illegally exercising both trades,
of Holman v. contrary to the 26 G. 8. c. 73. § 54.

Johnson, which was quoted by one of the judges as supporting the principal case is clearly
distinguishable from it, since that was decided on the ground that the contract and delivery
of the goods were complete in France, and that though the vendor knew they were to be
smuggled into England, still he was not bound to notice a mere revenue law of another
country. See Brown v. Duncan, lo Barn. & C. 98., and infra, 371-

Ribbans v. So also an innkeeper furnishing provisions at the desire of a

Crickitt, candidate to resident voters after the teste of the writ, cannot

264^- d recover the amount from the candidate, such provisions being
Lofhouse V. contrary to the Treating Act, 7 & 8. W. 3. c. 4.
Wharton, 1 Camp. 550., where the same doctrine was held as to non-resident voters, by
Wood Baron.

So also a printer cannot recover the price of printing a
weekly periodical work, unless he has complied with the injunc-
tions of the 38 G. 3. c. 78. § Land 10., by lodging an affidavit
at the Stamp Office stating the name and abode of the printer
and publisher, and by printing such name, ^c. on some part of
the paper.

Nor can a printer recover for printing a book, unless he prints
his name on the first and last leaves, according to the 39 G. 3.
c. 73. § 27. And it matters not whether the statute prohibits
the thing negatively, or enjoins it affirmatively ; if the subject-
matter of the plaintiffs action is in violation of it, the plaintiff
cannot recover in a court of justice.

And it would seem that it makes no difference whether the
thing is prohibited absolutely, or only under a penalty.

In one case, indeed, it was held that a factor who sold a
parcel of tobacco might recover the price, though he had not
taken out a licence as a tobacco dealer, according to the 29 G. 3,
c. 68. § 70., which enacts that every person who shall deal iij
tobacco shall take out a licence, which by § 72. is to be renewed
yearly, under penalty of 50/. The court held that as this was a

breach

Marchant v
Evans, 2 B.
Moo. 14.

Bensley v.
Bignold,
5 Barn. & A.
355.

Ibid. 340.

Johnson v.
Hudson,
11 East, 180.;
and see Gre-
maire v. Le
Clerc Bois
Valon.sCamp
144,

(E) Where the Consideration is against Law. 371

breach of a mere revenue regulation, protected by a sufficient
penalty, the plaintiff might recover. But it is to be observed
they also doubted whether the plaintiff was a dealer in tobacco
within the meaning of the act.

And this case has been confirmed by a very recent decision, Brown v. Dun-
where five persons carried on trade in partnership as distillers, ^"J?, lo Barn,
and one of them alone carried on the business of retail spirit
dealer within two miles of the distillery, contrary to the 4 G. 4.
c. 94(. §§ 132, 133., and his name was not entered at the Excise
Office or in the licence as a partner in the distillery, as re-
quired by 6 G. 4. c. 8. § 7. ; it was held that these being mere
revenue regulations, the breach of them by one of the partners,
with the knowledge of the others, did not render the trade
carried on by the five illegal, so as to deprive them of the right
to recover the price of spirits sold by the partnership.

A person cannot recover a sum for commission and money Josephs v.
laid out and expended in buying for the defendant shares in an Pebrer.sBmi.
illegal company, contrary to the 6 G. 1. c. 18. ^^ 814!^ *

So also where two persons engage in an illegal partnership, Mitchell v.
carried on in the name of one of them, for insuring ships, con- ??|^g"^"^'
trary to the 6 G. 1. c. 18. § 12., (which prohibits societies and g^g". and see
partnerships for underwriting and assuring, except the two char- Lees v. Smith,
tered companies,) and one partner pays sums for losses, he cannot 7 Term, 338.
recover any part of such sums in assumpsit from the other part- nm 'Txaunt.
ner, since the partnership being illegal cannot be the foundation 1 55. Aubert v.
of an action. And if an arbitrator award a sum due from one Maze, 2 Bos.
partner to the other for such losses, the court will set aside the & Pull* ^71.
award pro tanto.

And if one of such partners receive the premiums on such Booth v.
illegal insurances, the other partner cannot recover any portion ^S.'^S^^^
of them as money had and received to his use, for in such case guUivan v.
the rule applies in pari delicto potior est conditio possidentis ; nor Greaves, Park,
if a proportion of the losses is paid by one partner to a broker Insur. 8. ; and
for the use of the other partner, can such other partner recover 5^^ ^^^"^ ^*
the money from the broker, (a) 4 Xaunt. 63.

(a) But the case of Sullivan v. Greaves is in principle overruled by the subsequent decisions of
Tenant v. Elliot, 1 Bos. & Pull. 3., Farmer v. Russell, ibid. 296., in which it was held that a
party receiving money for another as a mere agent, and not being implicated in the illegal trans-
action, cannot resist paying the money over on the ground that the consideration on which
the money was paid to such agent was illegal. And the case of Sullivan v. Greaves certainly
goes beyond the doctrine of Mitchell v. Cockburne, Aubert v. Maze, Ex parte Bell, and the
other cases, where one partner paying money on the illegal transaction is held not entitled to
recover a proportion as money paid to the use of the other; since in these cases it is ne-
cessary for the plaintiff' to prove the illegal transaction, and his case rests on the foundation
of it ; but in the case of an agent receiving money for the plaintiff', it is not necessary to go
into the illegal transaction, but the plaintiff' can recover on merely proving the receii)t of
the money by the defendant on the plaintiff''s account. The money in such case becomes the
plaintiff"'s money in the defendant's hands, and " the distinction is, that whether the con-
" sideration be good or bad, a man may recover his own vionet/, but not that of another
person." per Heath J., 1 Bos. & Pull. 299. Where, however, notice was given by the payer
to the agent not to pay the money over, and no money in fact passed, but the agent merely
credited the party to whose use it was to be received, it was held that such party could not
recover it. Edgar v. Fowler, 3 East R. 222.

B b 2 And

372

ASSUMPSIT.

Ex parte Bell,
1 \laule & S.
751.

Branton v.
Taddy,
1 Taunt. 6.

Faikney r.
Reynous,
4 Burr. 2069.

Petrie V. Han-
nay, 3 Terra R.
418.

"See 2 Bos. &

Pull. 571.

5 Barn. & Aid.

183.

Steers v. Lash-

ley, 6 Term R.

61. Brown v.

Turner,

7 Term R. 630.

Amory v.

Meryweather,

2 Barn. & C.

573.

Webb V.
Brooke,

And if money is advanced by A.^ one partner of a firm, to B.
for payments to be made on policies illegally subscribed on the
joint account of such partner and JS., although such money is
advanced out of the partnership funds without the privity of the
other partners, who are not at all concerned in the illegal in-
surances, still after j/f.s death his surviving partners cannot claim
this money against the estate of B., who has become bankrupt ;
for it must be considered as if the claim were made for the
benefit of A. the delinquent partner as well as the rest, and the
claim is founded on the illegal agreement to insure.

And if A. underwrite policies in his own name, but for the
benefit of himself jointly with a partner, when the fact of the
partnership is shown A. cannot recover premiums on such poli-
cies against third parties for whom they were underwritten.

It was indeed formerly held that where the plaintiff and a
third person had been illegally concerned in stock-jobbing trans-
actions, contrary to the 7 G. 2. c. 8., and the plaintiff paid differ-
ences, and the defendant gave a bond to the plaintiff for securing
the repayment of such third person's share, the plaintiff might
recover on such bond ; since stock-jobbing was not malum in se,
and the statute only prohibited paying or receiving differences,
but did not avoid all securities relating thereto.

And on the authority of this decision it was afterwards held,
where a broker had been employed by two parties, jointly
concerned in such illegal transactions, to settle their differences,
and one of the parties paid the whole amount to the broker
with the assent of the other, the party paying might recover a
moiety from such other party in assumpsit for money paid to his
use ; for in this case the payment was not strictly within the
statute, as it was made to the broker who had previously ad-
vanced the money to pay the losses. Lord Kenyan in this case
differed from the rest of the court, and the other judges only
held the action maintainable, because they could not distinguish
the case from that of Faikney v. Reynons. But both these de-
cisions have been repeatedly called in question, and are over-
ruled in principle by the cases of Mitchell v. Cockhurn, Anheri
T. Maze, and Booth v. Hodgson, sjiprh, and by the case of
Cannan v. Bryce, infra ; and the distinction between malum pro-
hibitum and malum in se, on which the former case partly rested,
is now exploded.

And consistently with the last-named cases, it is held if a
broker draw a bill on his principal for the amount of differences
paid for his principal in illegal stock-jobbing transactions, and
an indorsee take the bill knowing the nature of the consideration,
or take it after it is due, he cannot recover on the bill ; for thy
drawer himself could not recover, and the indorsee with notide
is in the same situation. Nor if he afterwards take a bond in
lieu of such bill can he recover on such bond. J

And if two parties join in illegally procuring the ransom of! a
ship, contrary to the 45 G. 3. c. 72., and one lend to the othtr

mon« v

(E) Where the Consideration is against Law,

373

money for their joint purpose, and a bill is given, the party 3 Taunt. 6.
lending the money cannot recover on the bill.

And so even if an innocent party lend to another money for Cannan r.
the purpose of paying losses on illegal stock-jobbing transactions, Bryce, 3 Barn,
he cannot recover back such money, for the statute making it ^ ^^^: i^^-
unlawful to pay such losses, it must be unlawful for one party to (f.^ f "'^.^ase is
• 1 1 "^ • 1 1 r- / \ 1 1 • "^ aistmguishable

provide another with the means 01 payment {a) ; and this case from Barjeau

rests on the same footing as the cases of selling goods know- v. Walraesley,
ingly for an unlawful purpose, in which case the vendor cannot ^ ^^"^ ^249.
recover the price. (See Langton v. Hughes, supra, p. 370.) cases where^*^

it is held that money lent to pay a gamingdebt maj' be recovered back, since the gaming
act 9 Ann. c. 14. does not expressly prohibit the payment of such debt, but only avoids
securities; whereas the 7 G, 2. c.S.§5. expressly proliibits paying or receiving differences
for not transferring public stock. See 5 Barn. & Aid. 184.

And where the plaintiff and defendant joined in laying an Simpson v.
illegal wager with Z)., and D. lost the bet, and the plaintiff ex- Bloss, 7Taunt.
pecting D. to pay it, for the defendant's accommodation ad- ^*^'
vanced to the defendant his share, and D. became insolvent and
never paid the bet ; it was held, that the plaintiff could not re-
cover back the money paid to the defendant, since it was ne-
cessary to ground his claim on the illegal transaction.

And on the same principle that the plaintiff cannot recover De Metton v.
where his case is founded on an illegal transaction, where the De Mello,
plaintiffs, a Frenchman and a Swiss, carrying on trade at Lisbon 12 East, 234.
in the name of the defendant, a Portuguese, shipped a cargo
from Lisbon to a French port, and the cargo was captured by
a British cruiser, and condemned in the Admiralty Court as
French, and enemy's property ; and the defendant, with the
plaintiff's privity and consent, claimed it as his property, and
thereby procured it to be restored to him : and the plaintiffs
afterwards brought an action for money had and received against
the defendant, to recover the proceeds, it was held, tliat they
could not recover; since having colluded with the defendant to
procure a judgment in the Admiralty Court, by proving the
cargo the defendant's, they could not now claim it in another
court as their own.

If two parties enter into an agreement which prima facie im- Holland v.
ports to be illegal, it lies on the party seeking to enforce it to Hall, 1 Barn,
show that the intention was legal. ^' ^^'

And if the consideration is immoral, it is against law, and no Girarjy y,

action can be founded on it. Thus an action will not lie for use Richardson,

and occupation of premises let for the purpose of prostitution, 1 Espin. 13.

nor for board and lodging of women where the plaintiff' is to ??°Y'*'''^ )[• ,

1 n 1 /. " p "1 • • • /• 1 c liouges. belw.

partake or the prohts or their prostitution, nor tor dresses tur- j^ p° g^

nished to women for such purpose : but it must be shewn that Bowry v. Ben-

the lodging was let or the dresses furnished expressly for such net, 1 Camp.

object ; for it is no defence merely to prove that the defendant •'*^' '--'oyJ ^•

was a prostitute, although the plaintiff knew of it. 1 jj^j^. &'puii,

340. J and see Gibson v. Dickie, 3 Maule & S. 463.

However if the plaintiff suffer the defendant to remain his Jennings v.

tenant after he has knowledge that she uses his premises for ihrogmorton,

B b 3 prostitution,

374 ASSUMPSIT.

R AM prostitution, he cannot recover the rent accruing after such
25K%ee * knowledge.|I
a Carr. & Pa. 47.

(F) Where the Consideration and Promise shall be
said to be sufficiently set forth and averred.

But for this, ^l^HE plaintiff must set forth every thing essential to the gist of
vide head ot ^jjg action, with such certainty that it may appear to the

PUd^^s court that there were sufficient grounds for the action ; for if

[Where there any thing material be omitted, it cannot appear to the court,

is a special whether the damages given by the jury were in proportion to the

contract or demand, or whether the party was at all entitled to a verdict,
agreement,

the plaintiff ought to declare upon it, for the defendant should have notice that he is sued on
it • but if the plaintiff fails of proving the case stated in the special count, after an attempt for
that purpose, it is now the course to permit him to go into evidence on the general counts, if
he have given notice that he means to rely on them as well as the other special ground,
the necessity of which notice is in order to prevent a surprise on the defendant. Dougl.
651. 24. 1 Term R. 134. Bull. Ni. Pri. 153.] ||If the plaintiff is legally entitled to recover on
any of the general counts, he may do so without any notice to the defendant. The surprise
on the defendant is obviated by the particulars of demand, which the defendant is entitled
to call for-ll

10 Co 77. For Therefore in an action upon the case, the plaintiff (a) cannot
this point, vide declare quod cum the defendant was indebted to the plaintiff in
Hob. 5. Godb. such a sum, and that the defendant, in consideration thereof,
186. Cro. Jac. supgr se assumpsit to pay, S^c. without (5) shewing the cause of
Hob.i8^Moor, the debt.

854. pi. 1167. Hetl. 106. Roll. Rep. 391. Bulstr. 67. 3 Bulstr. 207. Cro. Jac. 397. Hard.
132.; but Palmer, 171. per Croke and Chamberlain, there is a diversity where the promise is
to pay at a day to come, and where not ; for the promise to pay at a day to come, implies a
forbearance in the mean time ; and vide Roll. Rep. 396. (a) Such a declaration is not made
good by verdict. Cro. Car. 6. 31. Sid. 182. and vide Brownl. 14. Poph. 31. Jenk. 295.
\b) The plaintiff declared that the defendant was indebted to the testator of the plaintiff in 20/.,
qiMs ei solvisse debuit secundum agreament. inter eos habit. 2 Lev. 152. Judgment was stayed
after verdict, for the agreement might be by deed. Vide Carth. 276.

Sid. 246. ad- So if in an assumpsit the plaintiff declares that, in consider-

judged : Lev. ation quod procuravit J. S. to surrender a messuage, Sfc. the de-
•^A ^■^■.^^" fendant solveret to the plaintiff 10/., the declaration is not good,
iLvm s"c ^^^ there is no promise laid, super se assumpsit, or agreavit being
123. adjudged omitted ; and nothing here that imports a promise or contract.
nisi. Keb. 878- [See Lee v. Welsh, 2 Stra. 793. 2 Ld. Raym. 1516. S. P.] Put where it
was stated that it was agreed between the plaintiff and the defendant, and the mutual pro-
mises were omitted, the count was held good after verdict ; for the agreement imported a
promise. Mountford v. Horton, 2 New R. 62.||

2 Keb. 97. Sid- Super se assumpsit on an insimul computasset was left out, and a
^2^'^o^p difference was endeavoured to be taken where the law raises the

Hoit. vide^^ promise, and where it is a special promise ; and that in the first
head of Pleas it should not be needful ; but the court held it necessary in
and Pleadings, both, for the law does not (c) create a promise in any case

in pleading, but gives sufficient evidence to a jury to find a

promise.

But in this action the law requires no greater certainty in the

allegations than the nature of the thing requires ; therefore if a

contract be made in general terms, the declaration may likewise

(F) Consideration and Promise hotso set Jbrth and averred. 375

be general. Hence a quantum meruit for diversa vestimenta et
omnia alia materialia adinde spectantia, is good.

So if in an assumpsit the plaintiff declares that, in consideration 3 Bulstr. 31.
the plaintiff would find and provide for a sick man all such neces- adjudged be-
saries as he should want, the defendant assumed and promised tween Crips
to pay, Sfc, and avers that he had found him necessaries j^^u r j^j*
amounting to such a sum, Sfc. ; this is a good declaration, with- S.C. adjudged;
out shewing in particular what those necessaries were, for that and that rather
would make the record too proUx. because it was

'^ after verdict.

Vide tit. Error. This manner of declaring is certainly good, and every day's practice.

If in an indebitatus assumpsit the plaintiff declares that the de- jjob. 5. ad-
fendant was indebted to the plaintiff in ] 0/. for the (a) feeding judged and af-
and agistment of beasts, and for wheat et aliis {b) mercimoniis firmed upon a
per prcedict. the defendant habit, et recept. ; this is a good declar- J^'^com ^5cace
ation ; for though it be not sufficient to say that he was indebted RqH, r. 24.
generally, because that may be for rent upon leases, or debts S, C. adjudged
upon specialties, yet this is certain enough, for as well the wares and af&rmed.
and merchandizes, as the pasturing and wheat, are personal fo^ f "fhes^'^^"*
things, for which an assumpsit may be brought. Wright and

Beale, Lev. 141. Sid. 223. after verdict adjudged good, and intended severedj upon a special
contract. (6) So an indebitatus lies pro opere per antea facto. Sid. 425. Vent. 44. 2 Keb.
552. Mod. 8. adjudged. Pro prcemio, on a policy of insurance. 2 Lev. 153. [In an as-
tumpsit on the judgment of a foreign court, it is not necessary to state in the declaration the

g'ounds and cause of action upon which the judgment was founded. Crawford v. Whittal,
ougl. 4.]

So in an assumpsit the plaintiff declared pro opere et labore Carth. 276.
generally, without setting forth what sort or manner of work or p'^-'"u°^s*W &
labour it was; and though it was objected that it should be set jyj j„*^ g"
forth particularly, so that it may appear to the court to be lawful between Hib-
work, yet the court held it well enough; and that the only bertandCourt-
reason why the plaintiff is obliged to shew wherein the defendant ^^% p "s'd
is indebted, is, that it may appear to the court that it is not a 425 s.P.
debt on record or specialty (c), but only upon simple contract ; 2 Keb. 552.
and any general words, by which that may be made to appear, Mod. 8. S.P.
are sufficient. IZftu'A

295. 12 Mod.
16. 250. 308. 324. Fitzgib. 302. (c) For damages recovered in an assumjisit, will be no bar
to an action of debt grounded on a record or specialty. Cro. Car. 6. Leon. 155. Cro.
Eliz, 242.

If in an assumpsit the plaintiff declares, that whereas the de- Moor, 854. ad-
fendant had received 24/. of several persons, to the use of the -l^ 2^ , op
plaintiff (rf), in consideration thereof the defendant did assume adjudged!
and promise to pay, S^c. ; this is a good declaration, without (rf) So an in-
shewing of what persons in particular'he received the money {e\ debiiatus for
because the consideration is executed (^), and not travers- *"""'ju%u
able. (/O hands of

J. S. to the use of the defendant, Mod. 42. adjudged good after verdict ; and said,
they would intend it money lent. 2 Keb. 615. adjudged, and vide Roll. R. 391. Cro. Jac.
690. (e) So an indebitatus lies for 40/. pro diversis dcnar. summit ei prceslilis, ac pro diversis
denariorum summis de cad. the plaintiff recept. et habit, ac j^ro quodam pecunia: summa, by the
plaintiff^ at the request of the defendant, to J. S. solut., without shewing in particular how
much he was indebted for each cause, for that is not material, he being indebted so much m
tolo. Cro. Jac. 245. Yelv. 517. Brownl. Ent. 71. (g) Where the consideration is exe-

B b 4 cuted

376

ASSUMPSIT.

cuted, it is only inducement, and needs not precisely be alleged as to time or place. Cro.
Eliz. 715. (A) The common method now used is to declare for money had and received by the
defendant to the use of the plaintiff, without mentioning of whom, or by whose hands
received ; and this is the best method of declaring, as the plaintiff may give in evidence all
money received, which, under a particular declaration could not be done, if any of the payers
were omitted. This general form of action is, in many cases, equivalent to a bill in equity, for
an account, &c.
Cro. Car. 116
Holmes and

Savil ad-
judged. Hetl.
106. 113. S. C.
adjudged.
Poph. 177.
Latch. 141.
Palm. 442.
Yelv. 70.
Roll. R. 596.
S.P.

3 Mod. 1 90.
adjudged.
3 Keb. 469.
S.P. adjudged.

All. 5. ad-
judged. Vide
March, 100.

Cotterill v.
Cuff, 4 Taunt.
285.; and see
Tempest v.
RawJing,
13 East R. 18.
Squier v.
Hunt, 3 Price,
68. Clarke v.
Gray, 6 East,
564.

Leneret v.
Rivet, Cro.
Jac. 503.

Collins V.
Gibbs, 2 Burr.
899.

Courtney v.
Strong, 2 Ld.
Raym. 1217.

If in an assumpsit the plaintiff declares quod cum there were
several reckonings and accounts between the plaintiff and defend-
ant, and at such a day, ^c. insimul computaverunt for all debts,
reckonings, and demands, and the defendant upon the said
account was found to be in arrear the sum of 20/. in considera-
tion whereof the defendant promised to pay, 8^c.\ this is a good
declaration, without shewing it was pro mercimoniis^ or other-
wise, wherefore he should have an account ; for an account may
be for divers causes, arid several matters and things may be in-
cluded and comprised therein, which in pede compoti are reduced
to a sum certain, and thereupon being indebted to the plaintiff,
it is sufficient to ground an action.

If in a quantum meruit for meat, ^c. the plaintiff declares upon
a promise, to pay so much quantum rationahiliter valerent ; this
is a good declaration, though general; and though objected that
it ought to have been valebant.

If in an assumpsit the plaintiff declares, that the defendant, in
consideration of, 8)X. inter alia, did assume to pay, ^x. this is no
good declaration, because he ought to set forth the whole pro-
mise, which is entire.

II But it is now settled to be sufficient if the plaintiff states in
his declaration so much of the contract as shews the particular
promise, for the breach of which he complains. Thus, where
the plaintiff declared that the defendant warranted bacon sold to
the plaintiff to be prime bacon, and of good quality, this was
held sufficient, although it was also part of the warranty that the
bacon was singed, and of Stra7ige-dia2/'s manufacture : for the
plaintiff complained only of the inferiority of the quality. But
the whole of the consideration moving to the defendant must be
stated, for the consideration is entire, and it must be shewn that
it is entirely performed. ||

[Where the plaintiff declared upon two considerations, and
failed in a proper averment of the performance of the one, the
judgment was arrested, for the assumpsit of the defendant must
be presumed to be founded on the two considerations taken to-
gether.

If a defendant undertake to pay money in consideration of the
plaintiff's executing a release ; here the release is a condition
precedent, and the plaintiff must aver that he has executed a
release, or was ready to do it, else the declaration will be bad on
demurrer, and in arrest of judgment, if the judgment be by de-
fault ; though it would be helped by a verdict.

Where the plaintiff declared in consideration of a promise that
the defendant should hold an estate clear of a rent-charge granted
to J. 5., without molestation of the plaintiff; but did not shew

any

(F) Consideration and Promise how set forth and aOerred, 377

any title in himself to the rent-charge, the declaration was iSalk.364.
holden ill after verdict ; for the promise, as it stood, was a pro- ^' ^*
mise not to do a thing which the promiser could not do, and was
therefore merely nudum pactum.

Where the declaration stated that the defendant became, and Powlet v.
was tenant to the plaintiff of a certain farm, in consideration Walker,
whereof he undertook to manage it in a husbandlike manner; it ^ Term R. 573.
was objected that there was no consideration, because it was not
alleged that the defendant had become tenant on the terms of
cultivating the farm in a good and husbandlike manner ; sed non
allocaiur, for the bare relation of landlord and tenant is a suffi-
cient consideration for such a promise.]

II But a declaration stating that in consideration the defendant Brown v.
had become tenant to the plaintiff, he undertook to cultivate in j ^""^l n
a particular mode, and to repair, is bad for want of consider- ^g^
ation ; for these obligations do not arise from the mere relation See 2 Barn. &
of landlord and tenant. II C.273.

If in an assumpsit the plaintiff declares, that in consideration Hob. 88.
the plaintiff had promised to deliver a cow to the use of the de- (a) And if in
fendant, the defendant did assume and promise, 4'^. this is a such case the
good declaration, without (a) any averment of the delivery of the P'aintiffdoth

//\i 1 ■ • "^ r • , \ aver a per-

cow [o), because there is promise tor promise, (cj formance the

defendant can take no issue thereupon. Cro. EHz. 543. And an ill averment will not hurt.
Lev. 88. 293. (b) Where there are mutual promises the plaintiff' need not aver a performance
of his part. Yelv. 134. Roll. R. 336. Vent. 41. Hardr. 102, 103. March, 75. Cro. Eliz.
703. Lev. 20. 293. Cro. Eliz.137. Leon. 186. Salk. 29. pi. 30. (c) Both these promises
ought to be made at the same time, else they will be nuda pacta. Hob. 88. Cro. Eliz. 137.
Leon. 186.

[So also the assumpsit laid was, that the plaintiff had agreed to Martindale v.
deliver so much cloth to the defendant, and the defendant agreed , xyM*^'
on a certain contingency happening to pay 5l. for it ; but, if the im^j g* thg
contingency did not happen, it was agreed that he was to pay courts now
nothing : the contingency did happen, and on action brought the construe cove-
plaintiff had a verdict ; when it was moved in arrest of judgment "^"^^ ^° ^^
that the plaintiff had not averred the delivery of the cloth ; but independent
it was resolved that this being promise for promise, no such aver- according to
ment was necessary ; but if the defendant had undertaken to pay the intention

if plaintiff toomW deliver so much cloth, in that case an averment »"d nieanmg

^ , , , , ^ ' of the par-

would have been necessary.] ties^ and the

good sense of the case, this distinction would probably now be rejected. See i Saund. 520.
note 4.

||The rules of law respecting conditions precedent and aver-
ments of performance are clear and indisputable, viz. that where
the agreements on each side are distinct and independent each
party may bring an action against the other for breach of the
agreement on his part, without averring performance of the
agreement on his, the plaintiffs, part. But where the agree-
ments are mutually dependent, it is necessary for the plaintiff to
aver the performance of the agreement on his part, in order to
entitle him to an action for breach of the agreement of the de-
fendant. The difficulty lies solely in the ajiplication of these

rules

.378 ASSUMPSIT.

rules to each particular case. As the dependency or inde-
pendency of the agreements depends entirely on the spirit and
sense of the instrument and the intention of the parties, which
vary in every particular case, it is obvious that technical rules
can hardly be laid down on the subject ; some general rules
have, however, been extracted from the cases.
Callonel v. 1st. Where two acts are to be done at the same time, as

Briggs, 1 Salk. where A. covenants to convey an estate to B. on such a day, and
V Thoroe^^ ^^ consideration thereof B. covenants to pay A. a sum of money
iSW. 171.' on the same day (or on the conveyance), neither can maintain
Lancashire v. an action without shewing performance of or an offer to perform
^cf^i'iT'"^^^* ^^^ agreement on his part, though it is not ascertained which is
Kinffstonv. ^° ^° ^^^ ^^^^ ^^^ — Note. In contracts of sale and other cases
Preston, where the thingf to be done and the payment of the money are

Dougl. 691. concurrent, the party suing for the money raxxst sYiew peTformance
Jones V. Bark- ^f j-|^g thing for which the money is to be paid, or a tender and
Gooddison v,' f^J^sali or other matter equivalent to performance. But the
Nunn, 4 Term party suing for nonperformance of the other act or matter need
R. 761. Porter only aver a readiness to pay the money on the thing being done;
V. Sheppard, f^^. ^he doing of a thing for which money is the price virtually
Morton v.^^ ' Precedes payment.

Lamb, 7 Term R. 125. Glazebrook v. Woodrow, 8 Term R. 366. Peters v. Opie, 2 Saund.
352. note 5. French v. Campbell, 2 H. Black. 178. Phillips v. Fielding, Ibid. 123. Holdipp
V. Otway, 2 Saund. 106. Rawson v. Johnson, 1 East, 203. Heard v. Wadham, Ibid. 619.
Hall V. Cazenove, 4 East, 477. Martin v. Smith, 6 East, 555. Cook v. Jennings, 7 Term R.
381. Ferry v. Williams, 1 Moo. 498. 1 Saund. 520. note.

Dyer 76. a. in 2d. If a day be appointed for payment of money, or part of
marg. Thorpe it, or for doing any other act, and the day is to happen or may
I's llf T? 1 happen before the thing which is the consideration of the money
1 Ld. Rayra*. or Other act is to be performed, an action may be brought for
665. 1 Lutw. the money, or not doing such other act, without any averment of
250. 12 Mod. performance by the plaintiff, for it appears that the party relied
t?? T V "PO" ^^^ remedy, and did not intend to make the performance a
Duiitze 2 H.* condition precedent.
Black. 389. Smith v. Woodhouse, 2 New R. 233.

1 Salk. 171. 3d. But when a day is appointed for the payment of money, <^<r.,

1 Ld. Raym. and the day is to happen after the thing which is the con-
665. Smith V. sideration of the money, 4"^. is to be performed, no action can be
473 Gibbon v! maintained for the money, Sfc. before performance by the plaintiff.
Mendez, 2 Barn. & A. 17. 1 Saund. 320. b.

Boone v. Eyre, 4th. Where an agreement goes only to part of the consider-
1 H. Black. ation on both sides, and a breach of such agreement may be
Duke"of St? P^^*^ ^^^ ^^ damages, it is an independent agreement, and an
Albans v. action may be maintained for a breach of the agreement on the
Shore, Ibid, defendant's part, without averring a performance by the plaintiff;
279. Campbell ^^ other words, if the substantial part of the consideration has
6 Term R. 570. ^^^^ performed by the plaintiff, he shall not be barred from
Ritchie v. At- suing for his recompence on account of his nonperformance of
kinson, any subordinate stipulation, but such nonperformance may be

10 East, 295. compensated in damages to the defendant in a cross action.
Havelock v. ^ °

Geddes, 10 East, 555. Davidson v. Gwynne, 12 East, 389. Storer v. Gordon, 3 Maule & S.
308. Fothergill v. Walton, 2 Moo. 630.

5th. But

(F) Censideraiion and Promise how set forth and avenged, 379

5th. But where mutual covenants go to the whole consider- ^^^ ^^^
ation on both sides, they are mutual conditions, and perform- Large v.
ance must be averred ; in other words, if the plaintiff does not Cheshire,
shew performance of that which is the substantial and essential ^^®",** ^'*^*
part of the consideration, he cannot recover his recompence. [j J^ ^Pkadin^
(B) Vol. VI. as to dependent and independent covenants ; and 1 Will. Saund. 320. notis.
Assumpsit on an agreement to forfeit a deposit of five guineas, Luxton v.
and to pay a further sum of 1 0/., if the defendant did not accept Robinson,
the possession of certain premises from the plaintiff, and also "^ *
pay for certain fixtures therein at a fair appraisement by two
appraisers. In an action on this agreement, it was adjudged on
a special demurrer, that the declaration was ill, because the
plaintiff had not shewn his right to the premises, so that he
could have delivered possession according to his agreement, and
as each was to name an appraiser, that he had named one.

II So also where conditions of sale stipulated that the purchaser Phillips v.
should pay down a deposit, and pay the remainder of the pur- Fielding, 2 H.
chase-money at a certain time on having a good title, and that Black. 123.;
he should have a proper surrender of the estate (being copy- of St. Alban's
hold), on payment of the remainder of the purchase-money, in v. Shore, 1 H.
an action by the vendor for nonfulfilment of the conditions by a Black. 270.
purchaser, the declaration merely alleging that the plaintiff had
been always ready and willing, and frequently offered to make a
good title, and to make a proper surrender, on payment of the
purchase-money, was held insufficient on demurrer ; for it should
have alleged that the plaintiff actually made a good title, and
made a surrender of the estate, or a tender and refusal of
such surrender ; and it should also have shewn what title the
seller had.

But where the vendor averred that he was seised in fee, and Martin v.
that the title to the land was made good, perfect, and satisfactory Smith, 6 East,
to the defendant, and that he had always been ready and willing, ^^' ' ^"'^ ^^
and offered to convey to the defendant^ this was, on demurrer, William's
held a sufficient averment of performance on the part of the 1 Moo. 4*98.
plaintiff to entitle him to recover against the vendee for not Sug. Vend.&
completing the purchase; for the allegations that the plaintiff P-2i6.2Chitt.
was seised in fee, and that the title was made good and satis-
factory to the defendant, distinguished this from the last case;
and the court seemed of opinion, that a vendor need not set out
his title on the record, and it is not the practice to do so.||

In assumpsit on an agreement to pay 30/., in consideration of Gregory v.
the plaintiff's relinquishing a rent-charge to the defendant, the Nevill, Cro.
plaintiff averred that he did relinquish the rent, and did not ^^^'

claim it; but the judgment was arrested, because he did not
shew how he had relinquished the rent, for it might be by words,
which was no discharge.

The defendant promised to deliver a horse to the plaintiff, on Austin v. 5er-
the plaintiff's becoming bound to him by writing obligatory in ^oise.Hob. 69
llZ. ; the plaintiff in his declaration only averred his offer to be-
come bound, upon which, judgment was arrested ; for lie should
have averred a tender of the bond ready sealed to the defendant,

and

380 ASSUMPSIT.

and also the sum he was bound in, that the court might judge of

the performance.
Marriot V. Lis- Where the plaintiff declared for money lent by him to one
ter, aWils. J". 5.^ at the request of the defendant, the judgment was arrested,
^^A ?" '^ for the word lent is a technical term, and imports a loan to J. S.\
iSalk. 23.' if so, he was the debtor, and therefore the defendant could not
But a deciara- also be the debtor ; for there cannot be a double debt on a single
tion for money loan. But it had been otherwise if the plaintiff had declared for
lent to the dc- ^^Q^^y delivered to such a person at the defendant's request; for
a^"hiTrequest', then the loan would have been to the defendant himself.]
is good; for a loan to the wife, at the husband's request, is a loan to the husband himself.
Stevenson v. Hardj', 3 Wils. 388. 2 Black. R. 872. S. C.

11(G) Where Indebitatzis Assumpsit Vies, and where the
Declaration must be special.

'Y\^HEREVER the consideration on the part of the plaintiff is
executed, and the thing to be done on the defendant's part
is mere payment of a sum of money due immediately, or where
money is paid on a contract which is rescinded, so that de-
fendant has no right to retain it, this constitutes a debt for which
the plaintiff may declare in the general count, on an indebitatus
assumpsit. Anciently, (see Cro. Jac. 690. 245. Cro. Car. 6.) the
count in such case was special, (like the forms, 1 Saund. R. 267.
2 Saund. 350.) stating the consideration as executory, the pro-
mise, the plaintiff's performance, and the defendant's breach ;
but since that period the indebitatus count has grown by degrees
into use, though at first regarded with jealousy by Lord Holt
and other eminent judges. (See 2 Stra. 933. 12 Mod. 324.)
J Chitt. on Thus where real property has been sold, and conveyed with-

Plead. 338. ; out any contract under seal for payment of the price, or where it
but see 2 Ilnd. j^^g been enjoyed by the defendant as tenant without a lease, or
sTermR 327. by his under-tenant; the price in the former case, and the rent in
4 Taunt. 45. the latter, may be recovered in indebitaitis assumpsit.
Poulter V. So also if goods are sold and actually delivered to the de-

Killingbeck, fendant the price, if due, in money, may be recovered on this
1 Bos. & Pull, count ; and this, though the price is settled by third parties.
Leeds V Bur- Thus where the plaintiff let to the defendant land rent free, on
rows, 12 East, condition that the plaintiff should have a moiety of the crops, and
1. while the crop of the second year was on the ground, it was ap-

praised for both parties and taken by defendant; it was held, that
the plaintiff might recover his moiety of the value in indebitatus
assumpsit for crops, Sfc. sold ; for by the appraisement the special
agreement was executed, and a price fixed at which the defend-
ant bought the plaintiff's moiety.
Neal V. Viney, But if a party by one agreement engage to accept an assi gn-
1 Camp. 471.; ment of a lease of a farm, and also to take the fixtures, crops,
9^Moo^28 ^^' ^^ ^ valuation, and he is let into the possession of the fixtures,
6 Moo. 114. and the crops are valued to him, but the lease is not assigned
by the vendor, the vendor cannot recover the price of the crops

and

(G) Where Indebitatus Assumpsit lies, S^^c.

581

and fixtures in indebitatus assumpsit, but must declare specially
on the agreement, which is entire and cannot be divided.

If goods are sold on credit, as where sold to be paid for Mussen ▼.
in three months by a bill at two months, the vendor cannot \^^^'^ ti^^*
bring indebitatus assumpsit before the five months expire ; his y. Solomon-
remedy before that period, if the vendee does not give the bill, son, 3 Bos. &
is by a special assumpsit for not paying by a bill. Pull. 582.

Duperoy, 9 East, 498. Lee v. Risdon, 2 Marsh. 495. 7Taunt. 188. ; but see Hickling v.
Hardy, 1 Moo. 61. Brooke v. White, 1 NewR. 330. Marshall v. Poole, 13 East, 98.

And though the goods may have been purchased fraudu-
lently, and with intent not to pay for them, still the vendor
cannot maintain indebitatus assumjmt if the credit has not
expired.

But at the expiration of the period of credit, the debt being
due in money, indebitatus assumpsit may be maintained for it.

And so if the goods are sold to be paid for at the end of three
months, the vendor agreeing, if the vendee wish for farther
time, to take his bill at three months more, here if the bill is not
given, the vendor may bring indebitatus assumpsit at the end of
the first three months ; for the extension of time is expressly con-
ditional on the vendee giving a bill.

So also, if the goods sold are to be paid for, partly in money,
and partly in goods, the declaration must be on the special
agreement ; but if the goods to be given in exchange are de-
livered to the vendor, and the money only remain unpaid, this
may be recovered in assumpsit for goods sold and delivered.

And where the goods sold were to be paid for at a fixed price,
but it was agreed that the vendor should take other goods at a
stipulated sum in part of such price, on failure of the vendee to
deliver such goods. Lord Ellenborough held that a contract re-
suhed to pay the whole in money.

And if two tradesmen agree to supply each other on the foot-
ing of goods for goods, and a balance is struck between them,
this balance may be recovered in money.

Where the sale is complete, but there has been no actual
delivery, the price ma}' still be recovered in indebitatus assumpsit
for goods bargained and sold, if the vendor was ready to deliver,
unless the contract stipulated that the delivery was to precede
payment. But the property must have vested in the defendant,
or the vendor cannot maintain this action.

Ferguson v.
Carrington,
9Barn.&C.59.

Nickson v.
Jepson,

2 Stark. 2«7.

3 Camp. 352.

1 Holt's R. 179.
Sheldon v.
Cox, 5 Barn.
& C. 420.

Forsyth v.
Jervis,
1 Stark. R.
437.

Ingram v.

Shirley,

1 Stark. 185.

Hankey v.
Smith, Peake's
Ca. 42. Kymer
V. Suwercropp,
1 Camp. 109.
5 Barn. & C.
857. 6 Id. 388.
8 Id. 283.

And this was so held by Ellenboi'ough C. J. even after a resale Mertens v.
of the goods by the vendor, who brought his action merely to Adcock,
recover the loss on the resale; and when it was objected that the ^
vendor in order to recover, ought to have the goods ready to
deliver to the defendant, his lordship said the defendant might
maintain trover for them against the vendor.

However, the Court of Common Pleas subsequently departed Hagedom v.
from this doctrine, and in such cases it is always usual to have ^'li"S»

a special

6 Taunt. 166.

3»2

Hopkins r.

Vaughan,

12 East R.

398.

Lightfoot

V. Creed,

2 Moo. R. 250.

Hill V. Perrott,
3 Taunt. 274. ;
see Ferguson
V. Carrington,
9 Barn. & C.
59.

Read v.
Hutchinson,
3 Camp. 351.

1 Terra R. 153.

Towers v.

Barret,

1 Term R. 133.

Giles V. Ed-
wards, 7 Term
R. 181.; and
see Cooke v.
Munstone,
1 New R. ,551.

Weston V.
Downes,
Dougl. R. 24.

Power V.

Wells, Ibid.

Fortune v.
Lingham,

ASSUMPSIT.

a special count for not accepting and paying for the goods. And
it is decided that a vendee cannot be held to bail for goods
bargained and sold.

And so if a defendant fail to perform a contract to transfer
stock on a certain day, the plaintiff must declare specially for
nonperformance of the contract, and cannot, by purchasing the
stock in the market, recover the difference in price, as money
paid to the defendant's use.

Where the defendant fraudulently procured the plaintiff to sell
goods to a third person for a bill to be given by the defendant,
and indorsed by the vendee, and the defendant immediately got
the goods into his own hands, it was held that the plaintiff might
bring indebitatus assumpsit against him for the price ; for the goods
being in his possession unaccounted for, the law raised an
assumpsit to pay for them ; and the defendant could not set up
the contract, since that would be taking advantage of his own
fraud.

But Lord Ellenhorough in a similar case, held that indebitatus
assumpsit would not lie; but in this case it was expressly pro-
vided that no recourse was to be had to the buyer if the bill
was not paid.

Where the plaintiff has a power of rescinding the contract,
and does so, or where it is rescinded by mutual agreement of the
parties, the plaintiff may recover back, in indebitatus assump-
sitf any money which he has paid on the contract; but if the
contract is still open, the plaintiff cannot recover the money as
money had and received, but must declare specially for the
damage sustained.

Thus where the plaintiff paid ten guineas to the defendant for
a chaise and harness, on condition to be returned if the plaintiff's
wife did not approve of it, and the wife not approving it was re-
turned to the defendant, who refused to receive it ; it was held,
that the plaintiff might recover the money back as money had
and received, the contract being at an end, according to the
original terms of it.

So if the defendant by his own act prevent the complete per-
formance of an agreement made with the plaintiff, the latter
may recover back any money paid, as money had and received
to his use.

In cases of warranty of horses or goods, if the vendee accept
them back, on their being returned by the vendor, the latter
may recover back the price paid, as money had and received to
his use.

But if they are not returned, or the vendee refuses to accept
them, then the vendor's claim is for damages for breach of the
warranty, and in that case his declaration must be special.

And this last is the case, although the vendor after the sale
said, if the horse was unsound he would take it back, and

return

(G) Where Indebitatus Asettmpsit lies, S^. 388

return the money ; for this is no abandonment of the original 2 Camp. 4i 8.

contract. f^^"®^- „

Whale, 7 East
R. 274. ; and see Ellis v. Mortimer, i New R. 257.

In order to the rescinding of a contract, it is necessary that ^
both parties should be put in statu quo; and therefore a party
can not recover back his money, as money had and received,
where he has derived a partial benefit from the contract, but in
such cases he can only recover damages on a special count.

Thus, wliere the plaintiff agreed to take a lease from de- Hunt v. Silk,
fendant of certain premises, to be executed in ten days, and the ^ ^^st R. 449.
premises to be put in repair by the defendant before that time,
and the plaintiff paid 1 0/. on the agreement, and took immediate
possession, but the defendant did not repair the premises ac-
cording to the agreement ; it vy^as held, that the plaintiff could
not, by quitting the premises, rescind the contract so as to
recover back his money as money had and received, since he
had received benefit from his occupation of the house.

So, where the plaintiff had paid money to the defendant, for Taylor v,
permission solely to enjoy a patent of the defendant, for an Hare, 1 New
invention which turned out not to be new, the plaintiff was not • ^®®*
allowed to recover back his payments as money had and
received, since he had had a beneficial enjoyment of the patent.

In cases of special contracts" for building and performing Bull. N. P.
work and labour, if the work and labour is executed according 139. 1 Wils.
to the agreement, and the payment is to be made in money, the J''^- ^'''^ ^*
plaintiff may recover on the indebitatus counts; but if the pay- ^Xaunt'si
ment is to be made in a particular manner, as by bills, and the Bum v.
time of credit has not expired, the declaration must be special : Miller,
and if the work, Src is not done according to the contract, (that * Taunt. 745.
is, being different in nature, and not merely of inferior quality,) jg^** 7"Elst " "
the plaintiff cannot recover either on a special count or on the 479. Cook v.
indebitatus assumpsit ; unless, indeed, the defendant has acqui- Munstone,

esced in the deviation, either by using the work or seeing it go i ,^^ R.354.

■I . 1 • .• J Q 6 b Robsonv.

on and not objectmg. Godfrey,

1 Stark. R. 275. Holt N. P. C. 236. ; and see 1 Barn. & C. 704.

And where a party engages to work on a continuing contract, HuUe v.
and it is specially provided that no wages are to be paid till com- Heightman,
pletion of the service, although he is prevented completing the seeTcarr & '
service by the wrongful act of the defendant, he cannot recover P.208. 9 Bam.
wages pro rata in indebitatus assumpsit; but his remedy is &C. 92.
either on the special agreement, or for the tort of the de-
fendant.

So also where the plaintiff, a mariner, agrees by articles Evans v. Ben-
under seal, executed by the captain of a ship, to serve faithfully "^^^ ^ Camp,
on board the ship for a certain voyage, in consideration of '^'^'
which, the plaintiff and the other mariners are to receive a
certain share of the proceeds of the cargo when sold on the
ship's return, and the defendant, as owner, is appointed agent to
sell the cargo on behalf of all parties, the plaintiff cannot, on
proving a sale by the defendant, and that the proceeds are in his

hands,

d&4

ASSUMPSIT.

hands, recover his share in assumpsit for money had and received,
unless there has been an acknowledgment of the plaintiff's faith-
fully serving according to the contract; but his remedy is on the
special contract.

But where the defendant acknowledges to the plaintiff the
receipt of a sum of money on his account, and promises to
account for it, there the plaintiff can recover either on the count
for money had and received, or on the account stated, without
4 Moo. R. 542. going into the transactions out of which the receipt of the
money arose.

However, a servant at a yearly salary, payable quarterly, if
discharged in the middle of the quarter, and paid up to his
discharge, may recover wages for the remainder of the quarter
in indebitatus assumpsit, having tendered his services for such

Prouting v. *
Hamond,
8 Taunt. 688.
and see Teale
V. Auty,

Gandell v.
Pontigny,
4 Camp, 575.
1 Stark. Ca.
198. ; and see
Collins V.

tmie.

Price, 5 Bing. 152.

Eardley v.
Price, 2 New
R. 555.

Wells V.
Girling,
5 Moo. 79. ;
and see Gib-
son V. Minet,

1 H. Black.
569.

Mines V.
Sculthorpe,

2 Camp. 214.

Knowles v.

Michell,

15 East, 249.

Highmore v.

Primrose, 5 Maule & S. 65.

And if a schoolmaster stipulate on receiving a boy, that if he
is removed without a quarter's notice a quarter's salary extra is
to be paid, he may recover such extra quarter's salary on the
indebitatus counts for board, lodging, and tuition ; for the extra
sum may be considered an addition to the salary for the last
quarter the boy remains, payable on the event of notice not
being given.

Where the defendant signs a joint and several note, merely as
surety for another, the payee's only remedy is by a count on the
note ; and he cannot recover on the indebitatus count on an ac-
count stated, since the debt is due from the other party, and not
from the defendant.

And so also in case of a written guarantee to be answerable
for goods sold to a third party, the declaration must be special.
See 4 Dow. & Ry. 243.

An acknowledgment of a single item of debt due from de-
fendant to plaintiff is sufficient to support a count on an account
stated. II

(H) What may be pleaded as a good Discharge and
Performance of the Promise.

A N assumpsit is an action founded on a contract, the nonper-
formance of which is a fraud and injury to the plaintiff; and
therefore the defendant must shew that there was no contract, or
that the contract was void and without consideration, or that he

Vide head of
Pleas and
Pleadings.
Where in-

ture a release ^^^^h performed it, and is therefore discharged,
the statute of limitations, or more money lost at gaming than the statute allows, are good
bars. Vide the several titles ; and where they must be pleaded, or may be given in evidence,
title Evidence. [The general issue to this action is, " that the defendant did not undertake
and promise in manner and form alleged." But as the action is an action oHrespass u\ion the
case, the plea of " not guilty" was formerly used as the general issue. EIrington v. Doshant,
1 Lev. 142., and it is still effectual after verdict, though it will not be allowed on demurrer.
Marsham v. Gibbe, Ca. temp. Hardw. 175. 2 Stra. 1022. S. C.j

(H) What may be pleaded as a good Discharge ^ S^r. 385

If in a qtiantum meruit for medicines, the defendant pleads that March, 77.
he had paid the plaintiff (a), tot. et tantos denarionim summas, (ayia^nas-
as the said medicines were worth, without shewing what sum """/'^'^ *"''
in certain he hath paid (b) ; this is no good plea. Sd ouMhT^'

plaintiff avers that he laid out27«.; and the defendant pleads that he had paid all fees and
money laid out, without shewing what he had paid. Rob. Ent. 56. (i) Where the defendant
may plead generally, that the plaintiff exoneravit eum of the said promise. Cro. Car. 38S.
2 Roil. Abr. 408. pi. 1. (c) Qm. If on special demurrer such plea is not bad, as amounting to
the general issue ?

If in an assumpsit the plaintiff declares that the defendant did March, loo.
assume and promise to pay to the plaintiff so much money, and ^£r'^°^^^'^rd"ct
also to carry away certain wood before such a day; the defendant f^p t^g nW.n.
as to the money cannot plead that he paid it, and as to the car- tiffupon non
riage of the wood non assumpsit [d) ,- for the promise being (e) assumpsit, a

entire cannot be apportioned, (s) repleader was

'^ ^ ^° ' awarded,

(rf) Brownl. Ent. 58, 59. In an assumpsit to pay 24*. per hogshead for ale, &c. the plaintiff
shews, Hcei, 48s. was due to him secundum ratam prcedict., &c. and the defendant quoad 24s.,
de, &c. pleads non assumpsit, and as to the residue a tender, and thereupon issue is joined ,
and vide Thomp. Ent. 66. Rob. Ent. 40. (e) * The defendant pleads the promise was con-
ditional, and traverses that it was absolute as the plaintiff had declared. Thomp. Ent. 74.
Rob. Ent. 97.f (g) Qu. Therefore, if he should not have pleaded non assumpsit to the whole ?
||0n the general issue the defendant might shew payment of the money, and also object to the
variance in case the plaintiff did not prove a promise both to pay the money and carry the
wood, as laid in the declaration. |i

* Non assumpsit to part, and tender to the residue, is good.

f Qu. If such plea is good, if it does not amount to the general issue, and if the general issue
would not have been the proper plea ?

If the plaintiff declares upon an indebitatus assumpsit, and upon g Mod. az 44.
a quantum meruit, and the defendant pleads, that after the said adjudged.
several promises made, and before the action brought, the plain- Milward and
tiff and defendant came to an account concerning divers sums of !" ^t^^j^'oo-
money, and that the defendant was found in arrear to the plain- s.C. adjudged,
tiff 30/. ; and thereupon, in consideration that the defendant pro- But North
mised to pay the said 30/., the plaintiff likewise promised to C.. I. there
release and acquit the defendant of all demands ; this is a good tJ'^re ^^d been
plea, for by the account the first contract is merged. l.ut one debt

between them, the entry into an account for that would not determine the '"ontract. Vide
Ld. Raym. 680. [A stated account is no plea to a debt on simple contract; for both being
equal, the latter is not merged in the former. Roads v. Barnes, 1 Burr. 9, 1 Black. R.C5.
But a plea that the defendant indorsed a promissory note, of which he was the payee, to the
plaintiff " for and on account of the debt," is good. Kearslake v. Morgan, 5 Term R. 513.
So is a plea that the plaintiff and defendant accounted together ; and that the defendant drew
a bill of exchange upon himself in favour of the plaintiff for the sum he was found in arrear,
and delivered it to the plaintiff. Richardson v. Rickraan, B.Ii. M. 16 G. 3. cited in 5Teim
R. 517.] iJSee tit. Accord and Satisfaction.^^

The defendant cannot plead that he revoked his promise ; as ^V|'' j'^u'"' ^^'
if A. is in execution at the suit of 5., and J. S. desires B, to let |. p. a'Sred.'
him go at large, and that he will satisfy him ; to which B. agrees, (fro! Jac. 483.'
though J. S., before any thing is done in pursuance of this pro- S. C. adjudged,
mise and agreement, comes to B. and tells him, that he revokes
his promise, and that he will not stand to it; yet such revocation
cannot be pleaded in bar to the action.

So if in an asstmpsit the plaintiff declares, that in consideration ^ p^' 2j4.

the plaintiff would solicit a. business for the defendant, which he f^J"^^ ^c-
\T 1 *~i 11 twecn How

Vol. I. C c hail

386

ATTACHMENT.

and Beech, had with J. S. et Jinem adinde j^oneret, the defendant did as-
uponawricof gm^g^ ^c. and that he had solicited and employed much care and
Scacc. and * pains, SfC. but before lie could finem adinde po7iere, the defendant
the first jiulg- countermanded him, the action lies ; though it was objected,
ment affirmed that such employment is always countermandable ; and if the
accordingly. plaintiff had bestowed pains, and in part done the thing before
the countermand, he might have had a quantum meruit for what
he had done, but not an assumpsit for the whole ; yet it was re-
solved by the court, that if after part done the defendant coun-
termands it, the plaintiff shall have an action for the whole, and
upon the trial the jury ought to give as much in damages as the
business done deserves.

If A., being possessed of a horse, lends him to B., and B. as-
sumes and promises to re-deliver the horse to A. by a day, be-
fore which day the true owner of the horse, contra voluntatem R.,
takes him from B. (a) ; this matter, by reason of the precedent
property, is quasi an eviction of the horse from the possession of
B^ and shall discharge B. of his promise, (b)

Yelv. 22.
Shelbur and
Scotford ad-
Uidged. 2 Roll
R. Like point
point diibita-
tur. {a) So
the horse d

Jones, 179. {b) If one assumes to purchase lands at the best price he can, the promise to pur-
chase is absolute; but the price must be as reasonable as he can. Lev. 5. joer Twisdcn. But
per Foster C. J. — he is not bound to purchase unless the owner will sell.

ATTACHMENT.

A N attachment is a process that issues at the discretion of the
judges of a court of record, against a person for some con-
tempt (c), for which he is to be committed ; and may be awarded -
the foce of'thc ^y them upon a bare suggestion, or on their own knowledge, with-
court.thecora- out any appeal, indictment, or information ; for though by the
mitment is by statute of magna charta, none are to be imprisoned sine judicio
parium^ vel per legem terror,^ yet this summary method of proceed-
ing being absolutely necessary to the furtherance and execution of
justice, seems to have been long practised, and is certainly now

established as part of the law of the land.

secured. Jac.

Law Diet. tit. Attachment.] Vide 2 Westm. c. 5.

As several matters relating to this head fall more properly
under others, I shall only in this place consider,

(A) In what Cases an Attachment is to be granted :

(B) How the Person against whom it is granted is to
be proceeded against, and how to be discharged.

Lamb. Eiren
lib. 1. c. 16.
[(c) If for a
contempt in

rule of court,
unless the
party escape
out of court
before he is

(A) Iii

(A) In 'what Cases an Attachment is to be granted. 587

(A) In what Cases an Attachment is to be granted.

A LL courts of record have a discretionary power over their own Dyer, 2 is.

officers, and are to see that no abuses be committed by 2 Hawk. P. C.

them, which may bring disgrace on the courts themselves; ^^^' p^^

therefore if a sheriff or other officer be guilty of a corrupt ^^ ° "^ ^"S-

practice in not serving a writ; as if he refuse to do it unless

paid an unreasonable gratuity from the plaintiff, or receive a

bribe from the defendant, or give him notice to remove his

person or effects, in order to prevent the service of any writ ;

the court which awarded it may punish such offences, in such

manner as shall seem proper, by attachment.

But if there be no palpable corruption, nor extraordinary Hob. 62. 264.

circumstance of wilful negligence or obstinacy, the judgment ^°^' ^°^-

whereof is to be left to the discretion of the court, it seems not pinch 25-

usual to proceed in this manner, but to^ leave the party to his 1 Black. R, e.

ordinary remedy against the sheriff, either by action, or by rules [In contempts

to return the writ, or by an alias and pluries, which if he have *? Jp%ior ju-
„ r .. • . I ^ p nsdictions, the

no excuse tor not executing, an attachment goes 01 course. court of ^. R.

it seems, never interposes. Rex v. Burchett, 1 Stra. 567. But it will, for disobeying an order
of sessions, confirmed in B.R. Rex. v. Holland, Ca. temp. Hardw. 160.]

Sheriffs and other officers are liable to an attachment for an iiH. 6. 42.
oppressive or illegal practice in the execution of a writ; as using v) ^^' ^^^'

ji r '^ 1 • J '^ Moor, 770.

needless force, violence, or terror, treating persons under an gRoIl.Abr.

arrest basely and inhumanly, extorting money from them, ^c, 278. But there

or making an arrest without due authority ; as, by colour of may be some

a blank warrant (a\ filled up without the privity or subsequent ^P^*^''*' circum-

/» I 1 -/T. r J 1 stances which

agreement of the sheriff. ^^y injure the

court to excuse it, as that the practice was so, and that it was done to prevent the party's
having notice of the arrest. 2 Hawk. P. C. 215.

An attachment is grantable for a corrupt practice, in not 2 Hawk. P. C.
executing a writ effectually ; as if a sheriff, having levied a debt ^^^*
on an execution, embezzles the money.

II But if the plaintiff's attorney receives the money on v^Jieri Gwinness v.
facias, without the writ being delivered to the sheriff, it is no ^'^^n,
contempt to attach the money in the attorney's hands by a
foreign attachment. ||

Also an attachment is grantable in discretion for a false return Hawk. P. C.
to a writ {b); but this is not usually done without some visible 2i5. [(&) An
corruption, or extraordinary circumstances of malice, hardship, ""^ crained
or oppression, (c) against a

mayor for making a return to a viandamus in the name of the town-clerk and burgesses with-
out their knowledge or consent. Rex v. Hoskins, Ca. temp. Hardw. 188. If coroners do not
return an attachment of contempt against the sheriff, an attachment will be granted against
them in the first instance directed to elisors. Andrews v. Sharp, 2 Black. R. 91 1. The King
V. Peckham, id. 1218.] (c) For an action on tlie case lies against the sheriff; vide tit. Sheriff.
[For the same reason an attachment will not be granted against him for neglecting to take a
replevin-bond. The King v. Lewis, 2 Term R. 6i7-]

Attorneys are liable to an attachment, and have been punished ^"^^ tit. Al-
in this manner in numberless instances ; as for prosecuting or ^^"^1^^ C
defending a suit without directions from the party, for base and 217,

C c 2 unfair

388 ATTACHMENT.

(rt)Bntmnyde- unfair dealings towards their clients, in the way of business; as

tain money or f^^ protracting suits by little shifts, demandine money for busi-
wntmjis till ^ J ° J . • • I • I- . , V .1 •

paid his just ^^^^ never clone, detaining their clients writings, or tlieir money

lees. Salk 87. recovered and received by them (a); for barely attempting to

pi. 5. (A)Cro. forge a writ or other matter of record {b) ; for giving directions

Car. 74. Dyer, j.^ ^ sheriff what persons he shall return on a pannel (c) ; or for
241. pi. so. , . ^ .' ,, . ^ ^ '

244. pi. .^s. endeavouring to impose on the court

(c) Moor, 882. pi. 1237. [A notice of action given in compliance with the requisition of a
penal statute, is not such a commencement of the suit, as will subject a plaintiff or his attorney
to an attachment for misbehaviour before suing out the writ. Gordon v. Powis, 2 Black. R.
781. per three Judges, dubit. Blackstonei.]

6 Moore, 70. ||The Court of Common Pleas refused to grant an attachment

against a person who had acted as an attorney of the court

without having been admitted, but left the party to sue for the

penalty given by the statute 2 G.2. c.23. §24?.||

Vide 2 Hawk. And all other officers of courts of record are in like manner

P. C. 220. And punishable for disobeying the commands of such courts, or for

punishable ^^ executing them oppressively, or otherwise misdemeaning them-

vide head of selves in their offices.

Juries. [A bailiff refusing to make affidavit of service of process will be attached. Rex v.
Rudge, 1 Black. R. 432.] ||The court will not grant an attachment against the deputy sealer
of the writs for a criminal act in refusing to seal a writ on a legal holiday without an extra
fee, Martin v. Bold, 7 Taunt. 182. 2 Marsh, 487. ; sed qu. whether the officer is entitled to
demand such extra fee ?t|

(g) No attach- Gaolers are punishable in this summary way, for gross mis-
Ser^Tavo^ behaviour in their offices, by the courts to which they more
Juntary escape, immediately belong (g^) ; also by disobeying a habeas corpus
but an inform- issuing out of a court which has authority to award it ; and
ation. The by the Court of King's Bench, for using prisoners barbarously
stt^u;. »<! inhumanly.

case, 1 Stra. 532.] 2 Hawk. P.C. 227. vide title Gaol and Gaolers. [A constable in any
part of England refusing to execute a warrant of a judge of B. R. for apprehending one
charged with felony, is punishable by attachment. Rex v. White and others, Ca. temp.
Hardw. 42.] ||Tidd. 230. 479., (9th edit.)|j

Keb. 484. The Court of King's Bench, as it hath a superintendency over

6 Mbd^S ^^ inferior courts, may grant an attachment against the judges
vide tit. Courts, of such courts, for Oppressive, unjust, or irregular practice, con-
and their Ju- trary to the obvious rules of natural justice ; as for denying a
risdtction in defendant a copy of the declaration, or going on to trial without
genera . giving him notice or time to make his defence, or for compelling

him to give exorbitant bail, or for taking unreasonable distresses,

or for taking money for vicious pleading ; for proceeding after a

prohibition, certiorari, Sfc.

Attachments have been granted for speaking contemptuoui

words concerning the rules of the court, and that in the firsi
[(a) Though instance, without any rule made on the party to shew cause why
wdsTerr' ^"?^ attachments should not be granted (a) ; for it would be in
spoken of a ^*^" ^° serve him with a second rule who had despised the first
subpceiia,, and the person serving it severely beaten ; yet as these facts were proved by on^
one witness, the Court of Chancery would not order the party to stand committed in the firic
instance, but only granted a rule upon him to shew cause why he should not be committel.
3 Atk. 219. Lord Hardvuicke was inclined to adopt the same rule, and to require Ivvfj
affidavits to ground an attachment in the first instance at law. North v. Wiggins, 2 Strfc.
1068. JlSee Say. R, 114. Tidd, 170. (9th edit.)||

(A) In what Cases an Attachment is to be granted, 389

HThe court will not grant an attachment for contemptuous Adains v.
behaviour after service of the process, this not being an obstruc- A" j*' «.

^'0"-ll Bing.24.;and

see 4 Moo. 147.

An attachment is the proper remedy for disobedience of the Mod. 21.
riiles of court; as of those made in ejectment (a), arbitrament, JoM"J-3j.".^
Sfc. II See Arbitrament. II So where a defendant In account, gtra. 695.
being adjudged to account before auditors, refuses to do it, unless 2 Wms.450.
they will allow matter disallowed by the court before; or where Salk. 71. pi. 6.
one refuses to pay costs taxed by the master, whose taxation the V^-^7Jy p " ^^'
law looks upon as a taxation by the court, {b) 484 48g, 508,

677. 1027. (8th edit.)|| {{a) Attachment in the first instance, for nondelivery of possession
pursuant to rule of court in ejectment. Davies v. Doe, 2 Black. R. 892. (b) Attachments for
nonperformance of an award, or nonpayment of costs, are not granted now as for contempts,
but are in the nature of a civil execution. Rex v. Stokes, Cowp. 136. Rex v. Myers,
1 Term R. 265. 1 Black. R. 638. S. P.] IJLewis v. Morland, 2 Barn. & Aid. 63. And it
seems the sheriff may take bail for the party's appearance on such attachments, though for-
merly held otherwise, Morris v. Hayward, 6 Taunt. 569. 2 Marsh R. 280. Studd v. Acton,
I Hen. Black. 474., as he clearly may on attachments out of the Court of Chancery, lAirf. ; sed
vide Phelps v. Barrett, 4 Price, 23. cont. as to attachments at law ; but the authority of this
case seems destroyed, 2 Barn. & A. 63.; and see Tidd's Prac. 220.1|

[The Court of King's Bench cannot grant an attachment Walker v. Earl
against a peer of the realm, for not paying a sum of money r^^^^^^'j?'"'
awarded, even though the defendant consent on condition that
the attachment shall lie in the office a certain time.

Although a plaintiff discontinue under the common rule on Stokes v.
payment of costs, he is not liable to an attachment for nonpay- Wooddeson,
ment.J

II Where plaintiff sued as a pauper, and defendant put off the Rice v. Brown,
trial on undertaking to pay the costs of the day, an attach- 1^ Bos. & Pull,
ment was granted by the court for nonpayment. ■'^*

The attachment is absolute in the first instance only in case Chaunt v.
of nonpayment of costs on an allocatur; and even if the alloca- ?"^^j 4,7°'*
tur is founded on award, a rule nisi is necessary.

If the demand of the money is by a clerk, a power of attorney Forest so.
must be shewn. 1 Price, 34 1 .

1 Chitt. R. 229.

The courts will in some cases compel a party to a suit by p^f^'"'''" ^•
attachment, to produce instruments on the apphcation of the ^ •^^^^t 157
other party. Cooke v.

Tanswell, sTaunt. 131.
And if a party, when his business in court is despatched, refuses Blackburnv.
to pay the officer his fees for doing the business, the court will oo°^"'i3jn7°'
grant an attachment against him to have him committed until he 277. Tidd's
pay his fees : for not paying the fees is a contempt of court. || Supp. (9th ed.)

51.

But an attachment is not usually granted for disobedience of a ^^^^ ^^ pj ~
rule of nisi prijis^ unless it be first made a rule of court; nor for [(c) Therefore
disobedience of a rule made by a judge at his chambers, unless »t hath been
it be entered ; nor for disobedience of any rule without personal s^U"''?^!* |^^'
service, (c) support a rule

for an attachment for contempt, must shew that the defendant was served personally with n

C C 3 copy

390 ATTACHMENT.

copy of the rule, and that the original rule was shewn to him at the same time. The King v.
Smithies, 3 Term R. 351. But where a mandamus was granted for the election of a mayor,
under 11 G. 1. c. 4. § 2., and a rule made that public notice should be affixed in the market-
place, which was done accordingly, an attachment was granted for disobedience of the
inandaviiis against a member of the corporation who was served with a copy of the rule, not-
withstanding neither the original viandamus, nor rule was shewn him at the time; for the
public notice by the act is prima/acie sufficient. But the application for an attachment might
be well answered, if the party could shew that he had no notice of the mandamus. The King
V. Edyvcan, 5 Term R. 352.' HChitt. R. 503. 1 Dowl. & Ry. 529. ; sed vide 2 Price, 2. Service
on a Sunday is bad, 8 Term R. 86., and a copy of the order must be served, shewing the
original alone is not sufficient. 1 Price, 401. The C. B. will not'open the rule for attachment
for°nonnaynient of costs on mere affidavit that the party has not been served, unless he shew
mistake' 1 New R. 256. H Motions for attachments in civil suits are proceedings on the civil
side of the court of K. B. till the attachments issue, and therefore the affidavits on which they
are grounded are to be entitled with the names of the parties ; but when the attachments
issue the king is to be named as prosecutor, for the proceedings are then on the crown side.
3 Te'm R. 253. Wood v. Webb.J jj Whitehead v. Firth, 12 East, 165. The King v. Sheriff
of Middlesex, 7 Term R. 459.!1

Brandon v. jjAnd where the order of the court is, to perform a certain

Brandon, get, a demand of performance is necessary before an attachment

ton v. Hudson, I Bing. R. 410.

8 Moo. 610. But where the order was forthwith to reinstate certain pre-

1 Bing. 464. raises, an attachment was granted for not having cominenced within

four days from the service of the order, [j

2 Hawk. P. C. An attachment is proper for abuses of the process of the

231. Fortes. court; as for suing out execution where there is no judgment;

267. [Granted bringing an appeal for the death of one known to be alive;

IiTaintiffin an niaking use of a process of a superior court, as a stale to bring a

action, and his defendant within the jurisdiction of an inferior one, and then

attorney, for dropping it; using such process in a vexatious, oppressive, or

entermg up unjust manner, without colour of serving any other end by it.
judgment on a '' o ./ •>

bond and warrant of attorney executed whilst the defendant was under arrest, and without
calhng in his attorney. Woodin v, CoUedge, Ca. temp. Hardwicke, 177. The instituting a
suit, though there be a real demand, either for the purpose of injuring a third person, or of
getting the opinion of the court, is a contempt punishable by attachment. Coxe v. Phillips,
Ca. temp. Hardw. 237. Da Costa v. Jones, Cowp. 729. Hoskins v. Lord Berkley, 4 Term
R. 402. So is putting in bail by feigned names, no such persons being in existence. Stra.
384. Or assigning for error the death of the plaintiff in ejectment. Moor v. Goodright,
2 Stra. 899. Or arresting a plaintiff whilst attending arbitrators under a rule of court in
order to injure his cause. Rex v. Hall, 2 Black. R. 1 1 10. Or the mere serving of process on
a party attending his cause in a court of justice. Cole v. Hawkins, 2 Stra. 1094. Andr. 275.
S. C. Or bringing a writ of error, after having obtained an injunction on the terms of giving
a release of errors. 3 Atk. 297. Where the court will punish for contempts in the chal-
lenging of juries, see 1 Stra. 593. 2 Lord Ray m. 1364. 8 Mod. 245. 2 Stra. 1001. An
attachment was granted against a person for threatening the life of the prosecutor, who had
indicted another for perjurj^, in an affidavit on which an information had issued against him.
Rex V. Carroll, 1 Wils. 75.

2 Atk. 469. [It is a high contempt of a court, punishable by attachment,

2 Ves. 520. either to scandalize the court itself, or to abuse parties who are
concerned in causes in it, or to publish any thing in order to |
prejudice mankind against the parties before the court.]
Ex parte HAnd accordingly Lord Chancellor Erskine committed to the !

Jones, 13 Ves. Fleet the committee of a lunatic and his wife, and the printer, for '
Mr Ju"st ^Wil- publication of a pamphlet having an obvious tendency to obstruct
mofi elaborate ^^e petitioner, acting under orders of the court, in the manage-
ment ,

(B) Pj'oceedings on Attachment. 391

ment of the estate, and to bring into contempt the court's judgment pre-
orders. parld to be

delivered in the King v. Almon, Mr. Wilmot's notes, 243.

And a court of general gaol delivery has jurisdiction to make The King v.
an order in a trial likely to last several successive days, prohi- 4 g™^"'^ ^U
biting the publication of the proceedings until the trial is termi- g^g, jj prjce
nated ; and in case of disobedience they may punish the contempt R. 68. Such an
by fine. order appears

to have been
first made in the trial of Lord Melville in 1806, and aftenvards in the King v, Watson, and
the King v. Brandreth.

And a judge at nisi prius has not only the power of commit- The King v.

ting but of fining a defendant for a contempt committed by him ?^^^''"'o .,.
• • li.- ^1 • 1 111 • 1 y-ii • • 1- • J 4 barn. & Aid.

m insultmg the judge, blasphemmg the Christian religion, and 529.; and see

slandering individuals not present. 1| tit. Courts.

[If a defendant in a penal action obtain a rule to stay proceed- King v. Clifton,
ings, on paying a sum agreed upon between him and the plaintiff, 5 TermR. 257.
the court will grant an attachment against him, if he refuse to " J^^^Ta^nt'
pay such sum.] IJ-l^l'l

(B) How the Person against whom an Attachment
is granted is to be proceeded against, and how
discharged.

A TTACHMENTS are usually granted on a rule to shew 2 Hawk. P.C.
cause, unless the offence complained of be of a flagrant na- i4i.Salk. 84.
ture, and positively sworn to ; in which last case the party is P • ^' ^rj?"^^'
ordered to attend, which he must do in person ; as must every court will
one against whom an attachment is granted ; and if the party never grant an
attending the court upon such a rule to answer it, or appearing attachment for

upon an attachment, be apparently guilty, the court in discre- f,"*^ party at
^.* ., .' ^ ^,* •' & .'' . thesuitofano-

tion, on consideration of the nature of the crime, and other ther, where the
circumstances, will either commit him immediately, in order to affidavits on
answer interrogatories to be exhibited against him (a), concern- which it is
ing the comtempt complained of, or will suffer him to enter into ^°Jrn bef ^"^^
a recognizance to answer such interrogatories; which if they be the {)rosecu-
not exhibited within four days, the party may move to have tor's agents,
the recognizance discharged; otherwise he must answer them, Re.w.Wal-
thougli exhibited after the four days ; but in all cases, if he j|^4q| (a)Bat
fully answer them, he shall be discharged as to the attachment, he cannot
and the prosecutor shall be left to proceed against him for the come in and
perjury (b), if he thinks fit ; but if he deny part of the contempts confess the
only, and confess other part, he shall not be discharged as to after*^tTie'inter-
those denied, but the truth of them shall be examined, and such rogatories are
punishment inflicted, as from the whole shall appear reasonable ; filed, unless in
and if his answer be evasive as to any material part, he shall be ^''^ ^'^^^ °^**
punished in the same manner as if he had confessed it contempt in

the fiice of the court. Rex v. Edwards, 4 Burr. 2105. 1 Black. R. 637. S.C. Rex v. Elkins,
1 Black. R. 640. Jn the case of a rescue, however, it has been since adjudged, that he must
answer interrogatories, if the prosecutor insist upon it, R. v. Jane Horsley, 5 Term R. 362.
In the King's Bench the interrogatories must be signed by counsel. Reg. gen. Mich. 1793,

Co 4 5Term

S92

ATTORNEY.

5 Term R. 474., and are referred to the master of the Crown Office to examine the party upon
them ; and he is to report to the court whether in contempt or not. Ca. temp. Hardw. 2.39-
But the party may demur to improper interrogatories, such as may tend to convict him of any
other offence, R. v. Barber, 1 Stra. 444., or subject him to a penalty. Ca. temp. Hardw.
239. If reported in contempt, he immediately receives sentence, unless the court, by consent,
wave giving judgment, and order the recognizance to be discharged, Rex v. James Wheeler,
5 Burr. 1256.; or the Attorney-general consent that he may be continued on his recognizance.
R. V. Beardmore, 2 Burr. 797. — ||The master's report that he is in contempt is conclusive ;
and when he is brought up for judgment, the contempt cannot be denied, but only mitigated.
Coulson V. Graham, 2 Chitt. R. 57. But in the Common Pleas the prothonotary's report is
not conclusive against parties who have been put to answer interrogatories before him ; but
they may except to the report on any material point. 1 Bing. 272. 8 Moo. 214. S. C. and
Id. 522.|| It is not usual to allow costs to a party who purges himself of a contempt which
he is charged with : but where the charge has appeared quite groundless and vexatious, the
court has given them. R. v. Plunket, 3 Burr. 1329. (b) R. v. Vaughan, Dougl. 516. It is a
rule of Court of K. B, that the master's report cannot be moved for on the last day of term,
w^ithout previous leave of the court, except in extraordinary cases ; and there must be always
a personal service of notice. R. v. Wheeler, 1 Black. R. 311. But attachments for non-
payment of costs, and not returning the writ, are expressly excepted out of this rule. 1 Burr.
661.]

[By a rule of the Court of K. B., Easter, 34 G. 3., it is ordered,
" That in future, whenever any writ of attachment shall issue
** in order to compel any person to answer upon interrogatories,
, ** and on which judgment shall not be given in the course of the

** term, the name of the cause shall be inserted in the list of
" motions appointed to come on peremptorily in the ensuing
" term, in order that the court may be informed what shall have
" been done in prosecution of such writ."

In Chancery, if a corporation is in contempt, there is no
remedy by way of proceeding for a contempt personally, against
the real parties who offend ; but the mode of compulsion is by
sequestration. At law a corporation cannot be attached for con-
tempt in their corporate character for not returning a writ
directed to them, but an attachment in the nature of apo7ie is the
proper way to compel an appearance. But where a mandamus
iTermR.652. goes to a corporate body to compel an election, the Court of
jJSee tit. Man- j^^ j?. it seems will attach the individuals who refuse to proceed
" to It.]

Rex V. Dr.
Windham,
Cowp, 377.
uondon v.
Lynn, 1 H.
Black. R. 208.
Bishop of Chi-
chester V.
Harward,

Co. Lit. 52.
8 Co. 58.
Hob. 9. Roll.
R. 3. Of a
responsalis and
his power, and
how disused
siace the se-

ATTORNEY.

N attorney is one set in the place of another, and is either
public, as an attorney at law, whose warrant is talis j^onit
loco suo talem attornatum ; or private, who has authority given
him to act in the place and stead of him by whom he is dele-
gated, in private contracts and agreements; which authority
must be by deed, that it may appear that the attorney has pur-
sued his commission. Of this all persons are capable, and there-
fore

(A) Admission and Qualifications of Attorneys. 393

fore may be executed by monks, infants, feme coverts, persons veral statutes
attainted, outlawed, excommunicated, villains, aliens, Sfc. ; for ^^^^ ^^^'^
this being only a naked authority, the execution of it can be Iq make artor-
attended with no manner of prejudice to the persons under such neys. Vide Co.
incapacities or disabilities, or to any other person, who by law Lit. 12s. a.
may claim any interest of such disabled persons after their death.

But the person (a) here treated of is an attorney at law, who (a) For pri-
is appointed to prosecute and defend for his client, and is con- v^te attorneys,
sidered as an officer belonginfj to the courts of justice ; concern- ./ tn-Autho-
mg whom there are several statutes and resolutions. Potver.

(A) Of admitting Persons to act as Attorneys, and the

Qualifications necessary for such Persons.

(B) Who may appear by Attorney, and in what Cases.

pearance ; and therein of the Warrant of At-
torney.

(D) Of the Power of an Attorney, when appointed j

and the Regularity of his Proceedings.

(E) Of the Determination of his Power j and herein

of dismissing or changing him.

(F) Of his Fees and Disbursements, and the Remedy

for the Recovery of them.

(G) Of the Privileges which an Attorney has.

(H) Of Offences and Misbehaviour for which he is
punishable j and herein of the Form of the Pro-
ceedings against him.

(A) Of admitting Persons to act as Attorneys, and
the Qualifications necessary for such Persons.

TJEFORE the statute Westm. 2. c. 10. all attorneys were made y^ 2 Inst.

by letters patent under the great seal, commanding the jus- 249. 377. Co.

tices to admit the person to be attorney to such an one; since Lit. 128. 8 Co.

which there have been several (b) statutes and rules made for :\^,' ^ ^ioA. 85.
^, , ^ , . c .^ When first of

the better regulation 01 attorneys. record vide

statute. 4H.4. c. 18. and Roll. R. 3. {b) 5 E. 1. c. 42., which see explained 2 Inst. 249,
6 Ed. 1. c. 8. explained 2 Inst. 311. 13 Ed. 1. c. 10. explained 2 Inst. 377. 27 Ed. 1. 7R.2.14.
3 H. 7. 1. 23 H. 8. c. 3. 29 Eliz. c. 5. 31 Eliz. c. 10. relating to cases in which persons may
prosecute or defend by attorney. By the 4 H. 4. c. 18. are to be inroUed, and sworn to exe-
cute their office truly. By the 1 H. 5. c. 4. no under-sheriff to practise as an attorney.
53 H. 6. c. 7. For restraining the number of attorneys in Norfolk, Suffolk, and Norwich, vide
2 Inst. 250. 32 H. 8. c. 50. 18 Eliz. c. 14. 4 Ann. c. 16. relating to the filing of warrants of
attorney. By the 3 Jac. 1 . c. 7. are to sign bills of fees, and produce tickets of money given
to counsel; vide postea,\eit&T {V\\90. By the 13 W. 3. c. 6. must take the oaths. By the
12 G. 1. c.29., made perpetual by 21 G. 2, c.5., acting as an attorney after a conviction for
forgery or perjury, to be transported.

394

ATTORNEY.

By the 2 G. 2. c. 23., made perpetual by 30 G. 2. c. 19.

§ 75., it is enacted, " That no person from and after the first
" day of December 1730, who was not duly admitted as an
" attorney pursuant to the directions of the statute, shall be
" permitted to act as an attorney, or to sue out any writ or
" process, or to commence, carry on, or defend any action or
" actions, or any proceedings, either before or after judgment
" obtained, in the name or names of any other person or persons,
*' in any of his majesty's courts of record, unless such person
" shall have been bound, by contract in writing, to serve as a
" clerk, for and during the space of five years, to an attorney
" duly and legally sworn and admitted ; and unless such person
" shall have continued in such service during the said term of
" five years [a) ; and unless such person shall be allowed of, ad-
" mitted, and enrolled by a judge of the said courts, and shall
" have taken the following oath : /, A. B., do swear, that I mil
" truly and honestly demean myself in the jpractice of an attorney,
" according to the best of my Jcnowledge and ability. And in case
" any person shall in his own name, or in the name of any other
" person, sue out any writ or process, or commence, prosecute,
" or defend any action or suit, or any proceedings in any of the
" courts of law or equity, as an attorney or solicitor, for or in
" expectation of any gain, fee, or reward, without being admit-
** ted and enrolled {h) ; every such person for every such offence
" shall forfeit and pay 50^. to the use of such person as shall
" prosecute him for the said offence, and is hereby incapable to
" maintain any action or suit in any court in law or equity, for
" any fee, reward, or disbursements, on account of prosecuting,
" carrying on, or defending any such action, suit, or proceed-
" ing (c) ; and that no attorney or solicitor shall have more than
" two clerks at a time, except the prothonotaries and secondary of
" the King's Bench, who may have three clerks. Also a sworn
" attorney, suffering any to act in his name, shall himself be
" disabled to act in any court, and his admitttance in any court
half^and therT " ^^ from thenceforth cease and be void: Provided {d\ that
been prevent- " an attorney or solicitor sworn in any one court may, by the
ed by illness « consent of an attorney or solicitor sworn in any other court,
from attending « which consent must appear in writing, signed by the attorney
or solicitor, in the name of such attorney sue any writ, pro-
cess, or commence, carry on, prosecute, or defend any action
or actions, or any other proceedings in such court, notwith-

healthallowed, « standing such person is not sworn or admitted to be an attor-
was admitted. -, c \ «

Ex parte Mat- "^y ot such court."

thews, 1 Barn. & Adolph. 1 60.11 Taking a turnkey for an articled clerk disallowed, and the
articles cancelled. Burr. Rep. 291. Eraser's case. ||An articled clerk had held the office of
surveyor of taxes during the term of his clerkship ; and on affidavit it appeared that out of
the five years of nominal service with the attorney, three (on a computation) had been spent
in actual service with him. He afterwards bound himself to a second attorney, and served
him for two years. But it was held, that his service under the first articles could not be
coupled with his service under the second. Ex -parte Peter Taylor, 4 Barn. & C. 34 1. G Dow.
& Ry. 423. ; and see 5 Barn. & A. SSS.Jl {b) A solicitor in chancery may practise in the equity
side of the Exchequer without being admitted a solicitor in that court. Meadowcroft v. Hol-
brooke, 1 H. Black. R. 50. ||But a solicitor in the equity side of the Court of Exchequer is not

entitled

Vide the sta-
tute, and the
same tlauses
with respect
to solicitors
practising in
courts of
equity; and
23 G. 2. c. 26.
§ 1 5., whereby
solicitors may
be admitted
attorneys with-
out stamp or
fee. [But at-
torney of 5. 5.
cannot be ad-
mitted of C.B.
without a new
stamp. Barnes,
38.] 11(a) But
see 2 Black. R.
734. 957.,
where attor-
neys were ad-
mitted by the
C. B., under
special circum-
stances,
though they
had not regu-
larly served
the whole
term of five
years under
the original
articles; and
see 1 Chitt. R.
5G&. 1 Dow.
&Ry. 14. An
articled clerk,
who had served

to business,
but who had
attended as
much as his

(A) Admission and Qualifications of Attorneys, 395

entitled to practise in the Court of Chancery ; and if he does, cannot maintain an action for
the amount of his bill. And semble, that a solicitor of the Court of Chancery cannot, by
writing, authorize a solicitor of the Exchequer to practise there in his name. Vincent v.
Holt, 4 Taunt. 452. But an attorney of the K. B , though he should not be at the time a
solicitor in Chancery, may recover for business done in the suing out a commission of bank-
rupt; for this issues out of the common law side of the Court of Chancery, and the petition
does not require any attorney's name. Wilkinson v. Diggell, 1 Barn. & C. 158. 2 Dow. &
Ry. 302. (c) 2G.2. c.23. §24.; and see 7 Moo. 54. 3 Bro. & Bing. 241. S. C.|| (d) At-
torney wiio gives another leave to practise in his name, is answerable for what he does in his
name. 12 Mod. 666.

[By 12 G. 2. c. 13. § 7. none but regular attorneys shall actio 12 G. 3. c. is.
the county courts, under a penalty of 20/. § '^'

By the same, § 8., Quakers may be admitted upon their affirm- § g.
ation.

By 22 G. 2. c. 4-6. § 34-. An affidavit of the actual execution 22 G. 2. c.46.
of the articles of clerkship shall be made and filed within three § 34.
months by the master and clerk, and none shall be admitted "W By this
before such affidavit shall be produced and read in open court, necessary that
§ 10. Affidavit shall be made by the clerk or master of actual a clerk should
service to such master or his agent for the term of five years, [a) actually serve

5 7. None shall take or retain any clerk after discontinuing five years
, . •' . ° under articles,

business. Therefore

where a clerk had served part of his time with a master who left the country, and before his
articles were assigned to another master an interval of ten months had elapsed, during which
he was not serving under articles, but under the assignment he served the remainder of the
time specified, the court would not allow him to be admitted till he had served out the ten
months under new articles. Ex parte Rowle, 2 Chitt. R. 61. And it has been holden, that
the statute is not complied with by the clerk's serving part of the time with another attorney,
though with his master's consent, and the rest of the time with his master. 7 Term R. 456.;
but see 2 Black. R. 764. And where a clerk to an attorney held, during the whole time for
which he was bound, the office of surveyor of taxes under the crown, it was held that he could
not be considered as serving his whole time and term in the business of an attorney within the
act ; and on this ground he was struck off' the roll after he had been admitted. In re Taylor,
5 Barn. & A. 538. In this case the clerk afterwards bound himself to another attorney, and
served him for two years, at the expiration of which time he was again admitted an attorney
upon an affidavit, stating that for more than three of the five years for which he was origi-
nally bound his service had been given to the attorney to whom he was articled ; and on
moving to strike him off the roll, it was held that his service under the first articles could not
be coupled with his service under the second, so as to entitle him to be admitted. In re
Taylor, 4 Barn. & C. 341. 6 Dow. & Ry. 428. But the C. B., refused to strike an attorney
off the roll on affidavit, stating tiiat he had not served a regular clerkship, as he had been
opposed on the same ground at the time he was admitted, and no misconduct or malpractice
had been imputed to him subsequently to his admission. In re Page, 1 Bing. R. 160.
7 Moo. 572.||

§ 1 0. A clerk, in case of his master dying, or discontinuing § 10. l|As to
business, or of his being discharged, if he serves the residue of the stamp-duty
his time in the manner prescribed by the act to another, and ""^jcfes^^S*^
makes the proper affidavits, may be admitted. the niaster

dies, see 34 G. 3. c. 14. § 5. 48 G. 5. c. 149. § 10. 55 G..5. c. 184. sched. part l.|l

j|An articled clerk having served part of his clerkship with an 1 Dow. & Ry.
attorney who died before the expiration of his term, is, it seems, ^**
at liberty, even after an interval of six years, to serve the re-
mainder of his clerkship with anothisr attorney, with a view to
admittance. And the Court of Kin«:'s Bench granted a rule to ^ ^'^'."- ^•.
discharge an articled clerk, where the attorney to whom he was o/j. 62. S.C.
bound had become bankrupt and absconded ; and directed the

rule

396

ATTORNEY.

5 Baj-n. & A.
257. 1 Chitt.
R. 694.

rule to be served at the last place of abode of the attorney, and
on the clerk to the commission of bankruptcy, and to be stuck
up in the King's Bench office.

This court has also a summary jurisdiction over matters in
difference between attorneys and their clerks; and therefore
where a clerk had misconducted himself, and left the service of
the attorney to whom he was articled at the end of a year
and a half, and the latter refused to take him back, in conse-
quence of his previous misconduct, the court referred it to the
master, who decided that a portion of the premium should be re-
turned ; and this decision was confirmed by the court, though
the point in question had been decided otherwise in a suit in the
Exchequer. But the court refused to compel an attorney to
execute an assignment of articles of clerkship where the clerk
had been guilty of criminal conversation with the attorney's wife,
even though the attorney had promised to assign him over.||

By 22 G. 2. c. 46. §16,17. Sworn clerks in Chancery, or
their clerks bound and actually serving for five years, or being
admitted and serving as a waiting clerk the two last years, may
be admitted solicitors ; and so if their masters die, and they
serve under articles with others.

^18. No sworn clerk to have more than two clerks.

§ 19. This act not to extend to the officers in the king's
remembrancers, treasurer's remembrancers, pipe office, or office
of pleas in the Exchequer.

§ 11. Attorneys acting as agents for unqualified persons, or
a) Where an permitting them to use their names, to be struck off the roll,

attorney had g^^^j committed to prison for any time not exceeding one
permitted a , <. '^ •' °

certificated year, {a)

conveyancer to conduct his business in the joint names of the two, this was held to be within
the meaning of this section ; and the attorney was consequently struck off the rolls, and the
clerk committed to prison for a month. 1 Barn. & C. 270.|1

Tidd, 68.
(f>th ed.)

22 G. 2. c. 46.
§ 16, 17.

§18.
§19.

§11.

§ 12.

§ 13.

§14.

49 G. 3.
§1-

C. 28.

1 &2G.4.
C. 48. § 1.

§ 12. None shall act as attorneys at the sessions who have not
been admitted according to 2 G. 2. c. 23., under a penalty of
50/., with treble costs ; and attorneys suffering such persons to
practise in their names shall incur the like penalty.

§ 13. The attorneys of the duchy court of Lancaster , or of the
great sessions in Wales, or of the counties palatine of Chester,
Lancaster, and Durham, acting within their respective jurisdic-
tions, are exempted.

§ 14-. No clerk of the peace or his deputy, or under-sheriff or
his deputy, shall act as attorneys at the sessions for the county,
Sfc, where they shall execute such offices, under the like penalty
of 50/.

II By 49 G. 3. c. 28. § 1. a service of five years as clerk to one of
the regularly appointed clerks of the king's coroner and attor-
ney in the Court of King's Bench, entitles the person so having
served to be admitted and practise as an attorney.

Also, by 1 & 2 G. 4. c. 48. § 1. (as amended by 3 G. 4. c. 16.),
persons who at the time of being articled have taken the degree
of bachelor of arts or bachelor of law in the universities of Ox-
ford,

(A) Admissiofi and Qualifications of Attorneys. 397

ford, Cambridge, or Dublin, may be admitted to practise as attor-
neys, after three years* bona fide service as clerks; provided the
degree of bachelor of arts have been taken within six years, and
that of bachelor of law within eight years, after matriculation, and
provided also that four years have not elapsed between the time
of taking the degree and that of entering into articles.

And, by § 2., if any person bound by contract in writing to § 2.

serve as clerk for five years shall, bona fide, be a pupil to a bar-
rister or certificated special pleader in England or Ireland for
one year, he may be admitted an attorney or solicitor in like
manner as now done where the clerk has served part of the term
of his clerkship with the agent of the person to whom he is
bound.

The statute 34 G. 3. c. 14. § 2. requires that the indentures of 34^,3. c. 14.
an attorney's clerkship shall be enrolled or registered with the § 2. Where
proper officer of the court, together with an affidavit of the the original
time of executing the same, before the clerk shall be admitted to ^p^les of
practise as an attorney ; and enacts, that unless the indentures \^^^ the Court
are enrolled or registered within six months next after execu- of K. B., on
tion, together with the affidavit of the time of execution, the motion, or-

service shall be deemed to commence from the time of enrol- ^^'^^^ ^'if' *A®
, master should

ment or registry only. be at liberty to

enrol a copy of them. Ex 'parte Clarke, 3 Barn. & A. 610. But where the indentures had
been sent from the country to be enrolled, and after the clerkship had been served no trace
of the indentures could be discovered in the master's office, the court refused to admit the
clerk, or suffer the counterpart of the articles to be enrolled nunc pro tunc ; though evidence
was offered that, at the time of the supposed enrolment, the fees for the enrolment were actually
paid at the proper office. Ex parte Pilgrim, 1 Barn. & C. 264.

The certificates of attorneys were first introduced by the
25 G. 3. c. 80. ; and now, by 37 G. 3. c. 90., every person ad-
mitted, sworn, and enrolled a solicitor or attorney, Sfc, in
any of his majesty's courts at Westminster, Sfc, or in any other
court in England holding pleas, where the debt or damage
shall amount to 405. or more, shall annually, between the first
day of November and the end of Michaelmas term then next fol-
lowing, [altered by 54 G. 3. c. 144. § 13. to " between the 15th
" day of November and the 16th day o^ December in each year,"]
during such time as he shall continue so to practise in any of the
said courts, or before such person shall commence, carry on, or
defend any action or suit, or any proceedings whatsoever, in any
of the said courts, deliver in to the commissioners of the stamp
duties, or to their officer appointed for that purpose, at the head
office of stamps in Middlesex, a paper or note in writing, con«
taining the name and usual place of residence of such person ;
and thereupon and upon payment of the duties, according to the
place of his residence, every such person shall be entitled to a
certificate, duly stamped, to denote the payment of the said
duties ; which certificate the said commissioners shall cause to be
immediately issued, under the hand and name of the proper
officer, in such form as they shall devise.

These duties, as fixed by the last stamp act (a), are, where the (a) ssG.z,

attorney

S98 ATTORNEY.

c. 184. schcd. attorney resides in London^ or within the limits of the twopenny
parti.; and for post, 12/. if he have been admitted three years, and 61. if
the former ^^^ admitted so lone: : if he reside elsewhere 8/., if he have

duties SC6 ^ .

44 G. 3. c. 98. heen admitted three years, and 4/. if not so long,
schetl. (A). 48 G. 5. c. 149. sched. part 1.

J 27. By § 27. of the above cited 37 G. 3. c. 90. every certificate shall

be entered in one of the courts in which the person described
therein shall be admitted, and enrolled with the respective officer

(a) See 2 G. 2. or officers [a) of the said courts appointed by the 25 G. 3. c. 80.

c. 23. §18. ^Q grant certificates of enrolment or admission, within the time
therein before prescribed, or before such person shall be per-
mitted to practise as aforesaid; and the said respective officers
shall from time to time, upon payment of the sum of Is., enter
in alphabetical order the names of the persons described in such
respective certificates, together with the places of such their re-
sidence as aforesaid, and the respective dates of such certificates,
in books or rolls to be prepared for that purpose ; to which
books or rolls in the said courts respectively all persons shall
and may, at seasonable times, have free access, without fee or
reward.
$ 30. By § 30. any person practising as an attorney without ob-

taining a certificate, or delivering in a false place of residence,
to evade the payment of the higher duties, shall forfeit 50/., and
be made incapable of maintaining an action for business done.
§ 90. And by § 90. any attorney neglecting to take out his certifi-

cate for the space of one whole year, shall be thenceforth in-
capable of practising either in his own name or that of any other
person ; and his admission shall be void. He may, however, be"*
re-admitted on payment of the arrears, and such penalty as the
court shall think proper to impose.

7 G. 4. c. 44. Acts of indemnity are occasionally passed to relieve attorneys

$ 3- who have neglected to take out their certificate in due time.

Davis V.Ed- A common informer may recover the penalties for non-observ-

raonson, ^nce of the provisions of this statute, though no such power is

582°;'fnd;ee expressly given to him.

1 New R. 245. ; sed vide 2 East, 569. cordru,

4Esp. Ca. 14^ And if an attorney be in partnership with another, and they
carry on their business together, and their joint names are put
on papers on causes in their office, either of them is liable to
the penalties of the last-mentioned act for practising as an
attorney without entering his certificate, though it do not appear
that one of them had any profit or advantage from the suit for
N R 4? • ^^'^^ t^^ 9^^^ ^^''^ action is brought ; the consequence is that two

ted vide ' attorneys or proctors cannot be sued together as for one offence

3 East, 569. in practising, without having obtained and entered their cer-
tificate.

6 Term R. 663. It has likewise been determined that the certificate act does
not extend to the county court, though an attorney prosecute
a suit there by writ o^justicies for more than forty shillings.
As a further inducement for attorneys to take out their certifi-
cates,

(A) Admission and Qualifications of Attorneys, (Certificate.) 39d

cates, it is enacted by the statute above cited 37 G. 3. c. 90. {a) that («) $ 3i.

" every person admitted, sworn, and enrolled in any of the courts

" therein mentioned, who shall neglect to obtain his certificate

" thereof, in the manner before directed, for the space of one whole

<' year shall from thenceforth be incapable of practising in his own

" name, or in the name of any other person, in any of the said

*' courts by virtue of such admission, entry, and enrolment ; and

" the admission, entry, and enrolment of such person in any of

" the said courts shall from thenceforth be null and void. Pro- {Jb) For the

" vided always, that nothing therein before contained shall be evidence, ia

" construed to prevent any of the said courts from readmitting ^" action by
„ , ^ '> , . . p • , ° an attorney

*' such person, on payment to the commissioners oi the duty f^p j^jg fggg ^^

*' accrued since the expiration of the last certificate obtained by to his not

" such person, and such further sum of money by way of penalty having been

« as the said court shall think fit to order and direct."(i) On the re-a^^mitted,

above statute it has been holden, in the Common Pleas, that \^„ to tlj^g

where a person is admitted an attorney, and omits to take out out his certifi-

his certificate within the year, he must be re-admitted before cate, see

he can practise, though he should never have practised on his f o^^I"r) i^.

former admission, (c) And, in the

King's Bench,

where an

Ry. 512. S.C.

729.

(d)lChitt.R.

207.

{e) Ibid. 208.

attorney has discontinued to practise after the expiration of his /^x g Taunt,
certificate, though in consequence of pecuniary difficulties and 408. 2 Marsh,
illness {d\ or absence abroad (e), a term's notice must be stuck 123.S.C.; and
up and entered at the judge's chambers for the purpose of re- ^^® iChitt.R.
admitting him, in like manner as upon an original admission, {g)
But where an attorney continued to practise after the expir-
ation of his certificate through the inadvertence or misconduct
of his agent or clerk, in neglecting to get it renewed, the court, r s-p
on an affidavit of the circumstances, will readmit him without Vaughan, E.
giving a term's notice, [h) And where the certificate of an at- 45 G. S. K. B.
torney of the Common Pleas had been, through the mistake of Tidd. 79.
his agent, filed in the King's Bench, where he was not admitted
for four successive years, such certificate was allowed to be W 1 Bam. &
entered and filed in the Common Pleas, on notice of the appli- g Taunt. 129.*
cation being given to the stamp office. (?) Where a term's 5 Moore, 578.
notice was necessary, and the party intending to apply to be re- 1 Chitt.R.i63
admitted on the roll affixed his notice outside the Court of ^"J^' ^'^^^
King's Bench in the morning before the sitting of the court, W * Moore,
on the first day of the term, of which the notice was intended to ?. *
be given, this was holden to be a sufficient compliance with the i^^^ q^q^
rule, {k)

In the Court of King's Bench it is a rule, that where an agent ^^)A^^^%^
employed to take out an attorney's annual certificate has neg- ^j^^ '^'^ ^^^
lected to do so, and the attorney has, from ignorance of the fact, affidavit of ad-
continued to practise, the court will only allow him to be re- mission on the
admitted upon payment of a fine, with the arrears of duty. (/) above ground.
But attorneys have been readmitted in that court without pay- court tYere^on
ing any fine or arrears, on making it appear that they never gge Tidd, Ap- *
practised (;«), or had discontinued practice after their last certifi- nend. ch. 3.
cate expired («), or that they were prevented practising by ill- §^^» ^^•
ness (o), or by being reduced to the situation of a clerk {p); and (^) ^ Chitt.R.

the "■ ■'

400 ATTORNEY.

(n) 2 Dow. & the distinction is said to be this, — that where the party has been

R y 3 8 . practising in the interval, he must pay the arrears of duty ; but

(o) 1 Chitt. R. not so where he has not practised, (q) So, in the Common

f °'!2^Barn & ^^^^^j ^^ attorney who had ceased to practise after the passing

Aid. 314. of the 25 G. 3. c. 80. and before the operation of the 37 G. 3.

1 Chitt. R.102. c. 90. §31. had commenced was readmitted, without paying
S. C. ; and any penalties or arrears of duty, (r) And, in a late case (5), an
see Ibid.692. attorney who had ceased to practise six years was readmitted
Diet. (2d edit.) i" that court on payment of a nominal fine, without the arrears
333, 334. n. of duty ; on an affidavit, stating that he had discontinued to

2 Marsh. 123. practise, on account of his affairs having become embarrassed,
R^ 23^°^<?r^ ^^^^ ^^ ^^ "°^ practised in the interval, and that no misconduct
Abbott'c.i. could be imputed to him in his character of an attorney. ||

(r) 2 Taunt. 598. («) 7 Moore, 410. 1 Bing. 91. S. C; and see 7 Moore, 493. 495.

This rule has ^7 ^ ''"^^ of the Court of King's Bench, Tr. 31 G. 3. (in aid
been since and furtherance of the dispositions of the legislature manifested
adopted by in the above acts,) it is ordered, " That, from and after the
P%^^"\ D° t " J^st day of Michaelmas term then next ensuing, no attorney,
instead of fix- " ^^o shall be retained or employed as a writer or clerk by any
ing up his " other attorney, shall, during the time of such employ, take or
name and « have any clerk under articles ; and that no service to any such
P^^^^ *• H ' ^ " attorney under articles during the time that such attorney shall
chanfbers ^k is " ^^ ^^ employed by any other attorney shall be deemed good
ordered by a " service. And it is further ordered, that, from and after the
subsequent *' same last day of Michaelmas term, no person who shall enter
rule,Tr. « Jj^^q articles with an attorney or attorneys shall be at liberty to
he shall enter, " serve the agent or agents of such attorney or attorneys, under
or cause to be " such articles, for a longer time than one year of his clerkship,
entered, in a « and that any such service to an agent or agents beyond that
book to be « ^jj^g shall not be deemed good service. And to the intent that
nurpose at " better information may be obtained touching the fitness and
each of the " qualifications of persons applying to be admitted attorneys, it
judge's cham- « is further ordered, that, from and after the same, Sfc. every
bers of that n pej-gon who shall apply for admission as an attorney in that
name'and " court, and who shall not have been admitted an attorney or
place of abode, " solicitor of any other court, shall, for the space of one full
and also the «< term, previous to the term in which such person shall apply
name and « ^^ j^^ admitted, cause his name and place of abode, and also
of^the°at- " the name or names and place or places of abode of the at-
torney or at- " torney or attorneys to whom he shall have been articled, writ-
tomeys to « ten in legible characters, to be affixed on the outside of the
ht'vTbeeVar-^ " ^^^^^ °^ King's Bench, in such place as public notices are
tided' and " usually affixed, and also in some conspicuous place in the
that no person " chambers {a) of each of the judges of that court, and in the
who shall not « King's Bench office ; and that no person who shall not have
^Ith this mfe " ^'^g^l^r^y complied with this order shall in future be admitted
shall in future " ^^ attorney of that court."
be admitted an attorney.

As a further means of reducing tlie number of this body of

J54G.3. C.14. men, by stat. 34- G. 3. c. 14. the legislature have imposed a

duty

(A) Admission and Qualifications of Attorneys. 401

duty of 100/. II by 55 G. 3. c. 184<. raised to 120/. || upon every
contract in writing, to serve as a clerk, in order to admission as
a solicitor or attorney in any court at Westminster^ and a duty of
50/. ||by 55 G. 3. c. 104. 60/. || upon every such contract, in
order to admission into any court of great sessions in Wales,
Chester, Lancaster, or Durham, or in any Court of Record in
England holding pleas, where the debt shall amount to forty
shillings. And § 2. no clerk can be admitted unless the indenture $ 2,
or writing containing the contract be enrolled, together with an
affidavit of the due execution thereof, in the court in which such
clerk proposes to be admitted, within six months next after the
execution thereof; and in default of enrolment within that time
the service shall be deemed to commence from the time of the
enrolment, and not from the execution of the indentures. And
by § 3. every person shall, previous to his being permitted to § 3.
practise, make an affidavit of the payment of the duty, and
specify in it the sum paid, and the name and place of abode of
the person or persons with whom the contract of service was
entered into, the time of the execution thereof, and of the en-
rolling of it ; and, in case he shall have been previously ad-
mitted a solicitor or attorney in some other court, shall specify
in such affidavit the court in which he has been so admitted, and
time of his admission, and cause the same to be filed in the court
in which he proposes to be admitted ; which affidavit shall be
produced and openly read in the court in which he proposes to
be admitted before he shall be enrolled therein.

The § 4. imposes a penalty of 100/. upon any person, other ^ 4.

than such as shall have been admitted in one of the courts of
great sessions in Wales, Sfc. by virtue of a contract made before
the 5th and 10th days of February 1794, and a service in pursu-
ance thereof, who shall in his own name, or that of any other
person, sue out any writ or process, or commence, prosecute,
or defend any action or suit, or any proceedings in any of the
courts at Westminster, without being admitted in one of them
according to the directions of the several acts now in force for
the better regulation of attorneys ; and further incapacitates him
from maintaining any action for the recovery of his fees, Sfc. on
account of such proceedings.

But by § 5. persons admitted in any court at Westminster, who § 5.

shall have paid the 100/. duty, may be admitted in any other
court mentioned in the act without paying any further duty; and
by § 6. a similar provision is made for the admission of those who § 6.

have paid the 50/. duty into any other court but those at West-
minster. And by § 7. any person admitted in any of the above § 7.
courts, by virtue of a contract and service thereunder, before the
said 5th and 10th days of Fcbruaty, may be admitted to any of
the other courts without the payment of the duties imposed by
this act. And § 8. protects articled clerks who shall have paid § 8.
the duty from the payment of it again, upon any new contract
with other masters.]

II By 44 G. 3. c. 98. § 14. any person who shall for a fee, Sfc. 44 G. 3. c. 98.
Vol. I. D d draw $ i^-

402 ATTORNEY.

draw or prepare any conveyance, deed, or other proceedings in
law or equity (except wills, agreements not under seal, and letters
of attorney), not being a serjeant at law, barrister, or solicitor,
S^c. duly certificated, or a special pleader, equity draftsman, or
conveyancer of one of the four inns of court, and certificated,
shall forfeit for each offence 50/. H
Vent. 11. An attorney sworn and admitted in any of the courts at West-

Sid. 410. minster may practise in any inferior court, unless such court by

^ ' ' charter or prescription is restrained to a certain number of attor-

neys, and has a power to exclude all others.
Lev. 75. Sid. Also if an attorney of any inferior court is refused the privilege
94. Keb. 349. Qf acting, or turned out by the judge or steward, a mandamus
rfifftit^ ^^^ ^^^ ^^ restore him.

Mandamus.
Barnes, 39. [An apprentice to a man as a scrivener, though he be also an

attorney, cannot be admitted.

ExparieCole, A barrister cannot be admitted an attorney : if he is desirous^

Dougl. 113. of being so, he must first apply to his society to be disbarred, i

Moody's case, An attorney who had at his own instance been struck off the!

Barnes, 42. j-oU, and had been put into the commission of the peace, and

made a commissioner of the land-tax, moved to be restoretl ; and

on an affidavit setting forth his reasons, the motion was granted,

he consenting to take no advantage of any action pending, if

there should be any.]

(B) Who may appear by Attorney, and in what Cases.

2 Inst 924 T^"^ Statute of Westm. 2. cap. 10. gives to all persons a liberty

Co. Lit. 128. ^^ appearing by attorney without any letters patent, which

8 Co. 58. it seems they were formerly obliged to take out, otherwise they

2 Mod. 83. were to appear each day in court in their proper person {a) ; for

Of infants ap- ^j^g command of the writ beinff to appear, was always intended

pearing in ^ , . o r r ' j

person by ^^ "6 in proper person.

guardian or attorney, rzrfe head oi Infants, [(a) By reason whereof. Lord Coke observeth,

there were but few suits. Co. Lit. 128. a.]

(b) 2 Hawk. But in a capital case {h) the party must always appear in per-

P.C.387. son, and cannot plead by attorney: also in criminal offences,

fg? 2 Biilst "^^^^^ »" ''^ct of parliament requires that the party should appear
299. (c) 3 Inst. ^" person ; so in appeal (c), or on an attachment, {d)
312. That the appellant and appellee must both appear in person. 3 Mod. 268. 4Mod. 9P.

2 Jones, 210. (d) 2 Hawk. P. C. 215. ; and vide title Appeal.

Lev. 146. ^" 3" indictment, information, or action for any crime what-

Kelw. 165. soever under the degree of capital, the defendant may, by the

Dyer, 546. favour of the court, appear by attorney; and this he may do ns

3 Inst.^1^25. ^^^^ before plea pleaded, as in the proceedings after, till con-
2 Hawk. P. C. viction.

273. A clerk in court may confess an indictment for his client. eMod. R. 16.
isEliz. C.5. By the 18 Eliz. cap. 5. par. 1. it is enacted, "that every

par. 1. « informer upon any penal statute shall exhibit his suit in propr

" person, and pursue the same only by himself, or by his r t-

" torn* V

1(1

(B) Who may appear by Attorney ^ and in what Cases. 403

" torney in court, and that he shall not use any deputy or
" deputies at all."

By the 29 Eliz. cap. 5. par. 21. it is recited, " that divers 29Eliz. c.5.
" of her majesty's subjects dwelling in the remote parts of the P^r-si.
" realm, had been many times maliciously troubled upon inform-
" ations and suits exhibited in the Courts of the King's Bench,
" Common Pleas, and Exchequer, upon penal statutes, and had
" been drawn up upon process out of the countries where they
" dwell, and driven to attend and put in bail, to their great
" trouble and undoing ; for reformation thereof it is enacted,
" That if any person or persons shall be sued or informed against
" upon any penal law, in any of the said courts where such person
" or persons are bailable by law, or where by the leave or favour
" of the court such person or persons may appear by attorney ;
" in every such case the person or persons so to be empleaded
" or sued, shall and may, at the day and time contained in the
" first process served for his appearance, appear by attorney of
" the same court where the process is returnable, to answer and
" defend the same, and not be urged to personal appearance, or
" to put in bail for the answering of such suits."

If one be outlawed upon an indictment for not repairing a Cro.Jac.6i6.
bridge, and thereupon admitted to bring a writ of error, he Sir William
must appear, and in person assign his error (a) ; so adjudged and ?^^p'® ^^^^'
agreed by all the clerks of the crown-office in Sir William Read's administrator
case ; and though the court greatly pitied Sir William^ because brings error
he was ninety years of age, and very infirm, and had kept his "pon an out-
chamber for a year and more, yet they held that it could not be 1*^''^ ^^^"^
1 I ^. 1 • '•',•' p , ^ 1 intestate for

done by attorney, bemg agamst the course oi the court, and murder he

doubted whether the king's privy seal would help him ; and he may appear
was thereupon brought from his house ten miles from London^ l»y attorney ;
in an horse-litter, upon men's shoulders to the bar, and came '^art*'''hiS *lf^
into court and assigned his error, and put in bail to prosecute, \aust have ap-
peared in person, that he might have stood rectus in curia, and answer the matter of fact ; yet
in this ca«e that reason fails. March, 113. Vide the statute 7 H. 4. c. 13., by which a judge
may examine into the inability of a person outlawed to appear, and the court dispense with a
personal appearance; and Cro. Jac. 462. where on affidavit of sickness the court allowed of an
appearance by attorney. Vide the 4 & 5 W.& M. c. 18., that persons outlawed may appear
by attorney, except for treason or felony, and reverse the same without bail. 2 Salk. 496. ace.
Vide tit. Outlawry.

If husband and wife are sued, the husband is to make an attor- ^ g^^j 213
ney for her. (Z») Bridg.73. '

See title Baron and Feme. Vide 6 Mod. 86. ||(i) For feme covert cannot make an attorney.
3 Taunt. 261.11

If an idiot sue or defend, he cannot appear by guardian, Co. Lit. 135.
jrrochein amy^ or attorney, but must appear in proper person ; ^-J^ ^'jg^^^"
but otherwise of him who becomes non compos mentis, for he Paini, 520.
shall appear by guardian if within age, or by attorney if of 2 Saml. 335.
full age. Vide tit. Idiot

and LinuUics.

In an attachment of privilege by the marshal, he shall have no q ^od. I6.
attorney because present in court.

D d 2 (C) Of

404 ATTORNEY.

Salk 87. pi. 4. AN attorney is not compellable to appear for any one, unless
fSVhere an "^ he take his fee, or back the warrant ; after which the court
attorney of ^;ii compel him to appear,
either bench i i i

has accepted a warrant, or subscribed a process, declaration, or warrant to appear, the rule is,
" that he shall be compelled to cause an appearance, or be liable to an attachment, or put out
" of the roll, as the case requires ; and the party is not to be received to countermand sucli
" appearance after his retainer." Tidd's Prac. 124. The usual mode of proceeding upon this
rule is by attachment. 6 Mod. 42. 86. ; and if an attorney expressly undertake to appear, tl-.e
court will oblige him to do it in a proper manner ; as, if for an infant, he must appear by
guardian. Goodright v. Wright, 1 Stra. 25. Stratton v. Burgiss, Ibid. 1 14. Power v. Jones,
Ibid. 445. And though he may have been imposed upon by a sheriflfs ofRcer, yet the court will
oblige him to fulfil his undertaking. Lorymer v. Hollister, 1 Stra. 696.] l|But a general un-
dertaking by an attorney to appear to process does not oblige him to put in bail to bailable
process. 2Chitt. 415.; and see .3 Bing. 7 0. And an attachment will not be granted against
an attorney for neglecting to enter an appearance according to his underiaking. Mould v.
Roberts, 4'Dow. & Ry.7l9.||

6 Mod. 42. If before a writ be taken out an attorney promise to appear

^j n u to it, and after it is taken out it is shewed to him, he ought
299. to appear, but th£it is no actual appearance; but 11 such un-

dertaking be after the writ is actually taken out, it is an ap-
pearance.
Salk. 86. pi. 3. Where an attorney takes upon him to appear, the court looks
per Holt said no farther, but proceeds as if the attorney had sufficient autho-
to be the j.j(.y^ ^j^^ leaves the party his action against him. (a)

court. 1 Keb. 89. [(a) But Qu. Whether an appearance under a forged warrant of attorney
be good? and see the case of Robson v. Eaton, 1 Term R. 62., where it was adjudged, that if
A. pay a debt which he owes to B. to the attorney of a person suing him in ^.'s name, but
without his authority, he shall be obliged to pay it over again.]

1 Sid. 51. [For where he once appears, or undertakes to be attorney for

(Z») Mordecai V. another, he shall not be permitted to withdraw himself; and it

Sa^°'R*"i''-3 ^^ ^^^^ ^° ^^ ^^'^ ^^^^^ ^° proceed in the suit, though his client

Menzies v. ' neglect to bring him money. (6)]

Rodriguez, 1 Price, 92.1|

I4yes. 272. II And it is said to have been determined in C. P. that an

A similar prac- attorney having quitted his client before trial could not bring an
ice prevails m . -'. ,. ,".,i °

Chancery; action tor his bill.

and in that court a solicitor having proceeded to a certain length in the cause, and then
declined to act further, has no lien for the costs upon a fund in court. 14 Ves. 196. 271. ;
and see 1 Swanst. 1. 3 Swanst. 93.

Johnston v. An attorney retained to defend an action is not bound, in fol-

1 Camp. 176. l°^i"g t^'e instructions of his client, to do what is meant merely

lor delay. U
Salk. 88. pi. 7. If an attorney appears, and judgment is entered against his
S P^^That ^^"^^^U the court will not set aside the judgment, though the
action \\\\\ lie attorney had no warrant, if the attorney be able and respon-
agmnstanat- sible; for the judgment is regular, and the plaintiff is not t<»
torney for ap- suffer when in no default : but if the attorney be not responsible
pearing with- or suspicious, the judgment will be set aside, for otherwise the

defendant

defendant has no remedy, and any one may be undone by that °"* * warrant.
^«„T,o J^ J J J 5 Mod. 205.

"^^^"«- . And for that

reason an attachment denied. Comb. 2., vide infra, letter (H), 422. HWhere an authority was
given to an attorney to protect a defendant from arrests, and before that authority was coun-
termanded the attorney gave an undertaking to put in bail for the defendant, the court would
not set aside the proceedings on behalf of the defendant, though he disclaimed the authority
of the attorney. 1 Chitt. 195.||

[Attorneys were anciently appointed in court, when actually i Wils. 39.
present; but they are now usually appointed out of court by ijmI'p^p
warrant, which should regularly be in writing; but an authority j^^ j^^* °*
by parol is said to be sufficient to support a judgment.]

A warrant of attorney may be entered at any time before judg- p n « «
ment {a), or before a writ of error brought. Por f^jg ^^^^

13 Eliz. c. 14. That after verdict in any court of record judgment shall not be stayed or re-
versed for want of a warrant of attorney ; and vide ~>2 H. 8. 30. and 4 Ann. c. 16. § 3. that
the plaintiff's attorney shall file his warrant the same term he declares, and the defendant's
attorney the same term he appears, on pain of forfeiting ten pounds ; and also suffering such
imprisonment as by the discretion of the justices of the court, where any such default shall
happen to be, shall be thought convenient. VideRo\\.R.l86. March, 122. Golds. 91. Brownl.
46". Hetley, 59. Bulst. 21. Cro.Jac. 277. Vide tit\fi IJrror. [{a) At any time pendente lite.

1 Stra, 526. Noke v. Caldecot, 2 Stra. 807. Henriques v. The Dutch East India Company,

2 Ld. Raym. 1532. S. C. Brooke v. Manning, Fitzg. 191.]

[It was formerly the course of the Court of King's Bench to i Salk. as.
enter the warrants of attorney on a particular roll kept for that ^''^' ^^'^'
purpose ; but this course was altered by Wright C. J. who caused
them to be entered on the top of the plea-roll, as the practice is
at this day.

It is to be observed with respect to the warrant of attorney,
that by 25 G. 3. c. 86. above-mentioned, ^13, 14-, 15., "no
" attorney shall sue out any writ or process, or commence, pro-
" secute, or defend any action, unless he shall have delivered to ., . .
" the officer or his deputy, appointed to sign or issue the first j,o action shall
" process for the plaintiif, or to enter, file, or record the bail or be stayed, or
" appearance for the defendant, a memorandum or minute of his judgment set
" warrant duly stamped, containing the names of the parties, '^^ .°"r^u"
" the court, and the attorney ; and where a precipe is required omittin" to
*' (except for an original), the nature and denomination of the enter a memo-
*' process, and the return of it; which memorandum or minute randum.
" the said officer or his deputy shall receive, and forthwith enter
" or file on record, and shall sign thereon the day of delivering
*' it." A similar memorandum is required by § 19. previous
to entering up judgment on a cognovit actionem, or warrant of
attorney.]

No man, though by consent of parties, can be attorney on Faresl. 47.
both sides, for the consent of parties cannot change the law. per curiam.

If the attorney in the original action acts as attorney in the Salk. 89.
proceedings against the bail without any new warrant (6), this is P'- ^^- ^°^'.
error; for though any person may take out a scire Jacias, yet 'gQ> TjjvJ.^gg.
upon the return a plea commences, and a new warrant of attorney 2 Ld. Raym.
ought to have been entered, because this is a new cause and dif- 821. 1252.
ferent record. 7 Mod. 5.

5 Mod. 397.
Carth.447. Burr and Atwood. (6) If the tenant makes an attorney in banco, and after
conusance of this plea is demanded by a franchise and granted, the attorney shall continue

D d 3 attorney

406 ATTORNEY.

attorney for him in the franchise also, without other making, and he is his attorney there m
facto, without other removal; for the conusance is granted to hold plea as the justices ought,
if this had not been granted. 21 E. 3. 45. b.Gl. 21 Ass. pi. 17. Fitz. tit. Receipt, 1.3.3. Roll.
Abr. 290. S. C. So if after conusance granted, a re-summons be sued for the failure of right
there in the court where this was granted, he continues attorney for him there also upon the
first retainer. Roll. Abr. 290. If judgment be given in banco against the defendant, and this
be reversed in B.R. for error in the process, the attorney whom the tenant had in the first
plea, shall continue his attorney now in B. R. to answer to the original. Roll. Abr. 290.

2 Show R ^^ ^^^^ °" ^ bail-bond, the principal gave a warrant of attorney

161. pi. 147. to appear for himself, and Ukewise ordered the same attorney to

Keb. 593. appear for the bail, who were his neighbours ; the attorney ap-

{a) Qu. If the peered accordingly and for want of a plea, iudfjment was had

courts would * • ^ ^i . 9 •", 7 i -i i , ' .• ° ^ -j

now set aside against the principal and bail ; but upon motion set aside as to

thejudgments the bail, the principal's order not being a warrant to appear
agamst the for more than himself, and it being by ignorance of the law,
bail, if they ^^^ ^^^ ^ wilful act, the iudges discharged the attorney as to any
were regularly . ^ / \ '' ° ° "^ "^

served With contempt, {a)
process, unles* they had a good defence ?

Moor, 711. If there be a mistake in the attorney's name, it may be amended

[Vide mprct, by the warrant of attorney, for the warrant of attorney being pre-
''** ^Tvr^^' cedent, will amend the roll, and the court will take notice that
Xe case of ^^ ^^ ^^^ same that appeared.

Richards v. Brown, Dougl. 114., where the very reverse to this was done, the name in the war-
rant of attorney altered to that in the declaration.] But if the right name be no where en-
tered, the court cannot amend. 5 Bulst. 202. [In Phillips v. Smith, which was a penal action,
a mistake in the addition of the defendant in the warrant of attorney was amended after error
brought. iStra. 136.] Vide^aXk.m.

(b') isEliz [The want of a warrant of attorney is aided after verdict {b)

c. 14. or judgment by nil dicit {c), S^c. by the statutes of jeofails.]

(<?) 4 & 5 Ann. c. 16.

(D) Of the Power of an Attorney, when appointed ;
and the Regularity of his Proceedings.

Comb. 40. nPHE authority of an attorney, when appointed, continues until
Roll. R. 366. judgment, and for a year and a day afterwards to sue out

(d) And ther a execution, and for a longer time if they continue execution ; but
new authority if "ot, the judgment is supposed to be satisfied and to make it
is necessary, appear Otherwise, the plaintiff must (d) again come into court,
Salk. 86. which he either does by scire facias, or an action of debt on the

judgment.

2 G. 2. c. 23. By the 2 G. 2. cap. 23. § 22. it is enacted, " that every writ

§R2. «« and process for arresting the body, and every writ of execu-

attorncv^ues " *^^°"' °^ some label annexed to such writ or process, and every

" for himself, " warrant that shall be made out upon any such writ, process,

his name need *' or execution, shall, before the service or execution thereof,

not be in- <« \^q subscribed or indorsed with the name of the attorney, clerk

writ 4TermR " "^ court, or solicitor, written in a common legible hand, by

Fields, one, " whom such writ, process, execution, or warrant respectively

&c. v. Lewen.] " shall be sued forth ; and where such attorney, clerk in court,

*' or solicitor, shall not be the person immediately retained or

" employed by the plaintiff in the action or suit, then also with

" the name of the attorney or solicitor so immediately retained

" or

(D) Power of an Attorney , and Regularity of his Froceedings. 407

** or employed, to be subscribed or indorsed, and written in
" like manner ; and that every copy of any writ or process that
** shall be served upon any defendant, shall before the service
** thereof be in like manner subscribed or indorsed with the name
*' of the attorney or solicitor who shall be immediately retained
" or employed by the plaintiflF in such writ or process."

II By a rule of the King's Bench, the attorney concerned for R. H. 2 & 3
the plaintiff in the cause, or his agent, shall upon all mesne G. 4, K, B.
process, and every writ of attachment indorse the place of abode ^Barn.&A.
and addition of the party against whom the writ is issued, or Ry/47i.°^*
such other description of him as such attorney or agent may be
able to give. II

All warrants for confessing judgments taken by any sherifif or Pasch. 15.
bailiff from any person in his or their custody by arrest, if not ^\i^' ^'^'
executed in the presence of some sworn attorney of either court, g j^j^j g^^
and his name set or subscribed thereto as a witness, shall not be Stra. 5.50.
good or of any force ; and upon oath made that the same was Barnes, 44.
not done, the same shall be set aside, and the sheriff or officer Wilmot v.
may be punished for so doing; and if judgment be entered [ByTsubse-
thercon, the same on motion will be vacated and set aside ; and quent rule,
if execution thereon be executed, the party will have restitution Pasch. 4 G. 2.
awarded him. t^^ attorney

required to be
present must be an attorney on the behalf of the defendant. 2 Stra. 902. He must be an
actual attorney at the time ; therefore one who had served a clerkship, though he was sworn
an attorney soon after the execution of the warrant, and before any motion was made to set
aside the subsequent proceedings, was not thought sufficient. Barnes v. Ward, Barnes, 42.
These rules are universal ; they extend to warrants of attorney executed abroad. Fitzgerald
V. Plunket, 2 Stra. 1247. But they are limited to the case of arrests upon mesne process ; for
one in execution may give a warrant of attorney to confess a new judgment, though an
attorney on his part be not present. Watkins v. Hanbury, 2 Stra. 1245. Fell v. Riley, Cowp.
281. Birch v. Sharland, 1 Term R. 715. But even in execution, if the party had been pre-
vailed upon to acknowledge a judgment for more than was really due, the court would give
relief, t^own. 281. They are limited too to the particular cause, and the particular person at
whose suit the defendant is in custody : to warrants to confess judgments in other actions, to
other persons they do not extend. 5 Mod. 144. Churchy v. Rosse, 2 Ld. Raym. 797. Finn v.
Hutchinson, 3 Burr. 1792. Holcombe v. Wright, Cowp. J 41. Of course they do not apply to
the case of a person in custody on criminal process. Charlton v. Fletcher, 4 Term it. 433.
Though in strictness they are confined to the case of persons in custody of sheriffs' officers,
yet where a cognovit actionem was taken from a prisoner in custody of the marshal, no attorney
on his part being present, the court thought that theplaintiff's attorney had acted improperly,
and relieved the prisoner. Parkinson v. Caines, sTermR. 616. But these rules, intended
for the protection of defendants, are not to be converted by them into instruments of fraud :
therefore, where it appeared that a warrant of attorney given by one in custody without an
attorney on his part being present, was so given purposely tvith a view to checU the plaintiff, the
court refused to set it aside. Oilman v. Hill, Cowp. 141. Where the defendant is himself an
attorney, the presence of another attorney on his part is not necessary. Walton v. Stanton,
Barnes, 37. jj Where defendant, on being arrested at suit of a third person, is taken to the
house of a sheriff's officer, to whom he voluntarily offers to give a warrant of attorney, it is
necessary for an attorney to be present on his part at the time of the execution. 2 Moo. 176.
8 Taunt. 233. See Tidd, 549. (yth edit.)||

In assumpsit the defendant pleaded tion assumpsit infrh sex Salk.86. pl.a.
annos; the plaintiff replied, and for want of the defendant's join- fj^oTnev's con-
ing issue in due time, the plaintiff's attorney signed judgment, gent to stand
but afterwards consented to accept the joinder in issue ; but to an arbitra-
upon motion to the court to compel him to accept it, it was op- tion will bind
posed, because the plea was a hard plea, and the client had ^l^f^^'^l'^^]

D d 4 notice

408

ATTORNEY.

Salk.70. pi. 3. notice of the advantage, and ordered the attorney to insist uponj

eSallf 787 ^^* '^^^ ^^"'^^ ^^^^^ ^^^^ ^^"^^ ^^ ^^^ ^ ^^'^'^ ^^^^^' ^^®^' ^°"^^
12 Mod. 129. "o' h^v6 compelled him if he had not consented to wave the ad-
Comb. 439. vantage ; but now they would hold him to his consent ; and for
[See tit. Arbi- the client, he was bound bv the consent of his attorney (a), and

•j And h h2'^ ^^^y *^°"^^ ^""^^ "° "°^^^^ "^' ^™-

been held, that the party is bound by a reference agreed to by his attorney, though he had
expressly desired him not to refer. Filmer v. Delbar, 3 Taunt. 486. 1 Chitt. R. 1 93. note (a).
And an enlargement of the time for making the award by consent of the attorney will bind the
client. Rex v. Hill, 7 Price, 644. || [Payment of a debt to the attorney, is payment to the
party ; but payment to an agent employed by the plaintiff's attorney, merely to sue the de-
fendant, is not so. Yates V. Freckleton, Dougl. 623. But if an agent in town take money
out of court, which the defendant has irregularly paid in under a judge's order, that shall bind
the plaintifl^ and be a waver of the irregularity. Griffiths v. Williams, 1 Term R. 710.]

Co 58 ^" ^^^^ ^^^ plaintiff by attorney cannot enter a retraxit, be-

Cro.'jac. 211. cause that is a perpetual bar, and in nature of a release.
Jenk. 283. In trespass in C. B. there was a verdict for the plaintiff, and his attorney entered a
remittit damna as to part, and judgment for the rest ; and it was held, that the attorney, by his
being constituted attorney, may remit damages, and that a remittitur need not be by the ^AAm-
t\W in propria persona, us 2i retraxit must. Salk. 89. pi. 9. Lamb and Williams. Ld. Raym.
£89. Coux V. Lowther.

Jenk. 52. Jf q, client desires his attorney to put in a plea, which the at-

brouf^ht^rwrit ^^^"^7 knows to be false, in such case he may plead quod non
of error, and ^^^^ veraciter informatus, and thereby he discharges his duty,
the attorney for one of the parties assigned errors, to which the defendant took issue, and the
other would plead in abatement. Vide 6 Mod. 40. 2 Stra. 783. Barnard. K. B. 4. B'itzgib. I.
and tit. Error.

Vincent v.
Groom e,
1 Chitt. 182.

II And an attorney has been held liable to pay the costs of shan*
pleas, though instructed by his client so to plead.
but see Merrington v. A'Beckett, 2 Barn. & C. 81.

Johnson, v.
Alston, 1
Camp. 176.

An attorney retained to defend an action, is not bound in fol-
lowing the instructions of his client, to do what is meant merely
for delay. II

Earl of Yar- C^ remittit damna may be entered by attorney.

mouth V. Russel, 2 Ld. Raym. 1 142.

2 Inst. 578. The warrant of attorney continues in force until the ju Jg'

IIBut it d^*^^^ ment, and for a year and a day afterwards, in order to have
not extend to execution.]

a 567. /a. against the bail, or to revive the judgment, this being a new action and a different
record. Cro. Eliz. 177. 2 Ld. Raym. 1048. 1252.||

VideFare6\.50.
12 Mod. 440.
[{6) Kaye v.
De Mattos,
2 Black. R.
1323. Mac-
pherson v. Ro-

(E) Of the Determination of his Power ; and herein of
dismissing or changing him.

TJ Y an order of the courts it is provided, that no person without
rule of court, order of the judge or secondary, and notice
to the adverse party or his attorney, shall change or shift his
attorney (b) ; or if done by such order as aforesaid, the attorney
newly coming in is to take notice, at his peril, of the rules in
the cause, whereof the former attorney was liable to take notice,

and

(E) Determination ofPoxveVi Dismissal, or Change of Attorney. 409

and shall also pay such first attorney, upon demand, all such "son, Dougl.

fees as the secondary shall tax to be due to him. -'"Jj llGiindere

•^ V. Moore,

1 Barn. & C. 654.|| Walmesley v. Booth, 2 Atk. 27. Ld. Hardw'iche said, that he did not know
that a sixty clerk could not be chanjed merely at the pleasure of the party. Taylor v. Lewis,

2 Ves. 112. Payment to the plaintiff's late attorney, changed without leave pf the court, is
good. Powell V. Little, 1 Black. R. 8.]

II As a sci. fa. is a new action, it may be sued out by a new i Salk. 89.
attorney, without an order of court, and without notice to the ^ ^^ Ravm
opposite party. - 1252.8.0.*

So a writ of error may be brought by a new attorney. Bachelor v.

Ellis, 7 Term R. 337.

And in the Common Pleas, even a writ of execution may be Tippin'' v.
sued out by a different attorney, without an order of court. Johnson,

2 Bos. & Pull. 557.

Where the attorney is changed pending the suit on obtaining 1 Taunt. 45.
the proper order, a new warrant is unnecessary.

Notice of justifying bail {a) or a plea put in {b) by a new at- (a) 2 Black R.
torney, without any order for changing the attorney is irregular, ^^^^- ^,°""^'
and the plaintiff is not bound to accept such notice or plea. ^-^ 2 Marsh.

257. 7 Taunt. 48. {b) 6 East, 549. ; sed vide 13 Ves. 161. 195.

But the sheriff or his bail may put in and justify bail above 7 Taunt. 48.
by their own attorney. 2 Marsh. 365.

iChitt.R. 81. 2 Barn. «&; A. 604. 1 Chitt. R. 329.

And where the defendant is a prisoner, notice of justification 1 Chitt. R.
may be given by a new attorney, without an order for changing ^^* ^^ -l^g
the attorney.

And a party called upon to shew cause may oppose the rule 4 Taunt. 669.
in person, after an order has been obtained for changing the at-
torney, although a copy of it has not been served on the oppo-
site party. II

That where the attorney for the plaintiff or defendant dies rirfeJenk. 179.
pending the suit, and the party whose attorney is dead, will Style's Prac.
not retain another attorney to manage his cause, the attorney ^^"'^^7' ^'*^'
against him may proceed, and is not bound to hinder his client's lew^aTtonfey
cause. jg appointed

notice thereof must be given to the opposite party before he can proceed in the cause. Ryland
V. Noakes, 1 Taunt. 342.||

If A. gives a warrant of attorney to one to confess judgment in Raym. is.
debt to B. by non sum informatus at eight in the morning, and Andrews v. \
at ten the same day A. dies before the judgment is signed by the °"°*'^ •
secondary, yet the judgment is regular.

A warrant of attorney to confess a judgment is not revocable (c), [(c) Where the
and the court will give leave to enter up the judgment though p'aintiff after
the party does revoke it, but it is determinable by the party's ceivedThe'^*'"
death ; but if the party dies in the vacation, the attorney may money, and
enter up the judgment that vacation, as of the precedent term ; gave a warrant
and it is a judgment at the common law, as of the precedent ^° an attorney
term (</), though it be not so upon the statute o{ frauds in respect j^^j satisfac-
of purchasers, but from the signing ; also the attorney must bring tion, and after-

410 ATTORNEY.

Nvards, and in the roll before the essoin of the subsequent term, otherwise

before satisfac- the court will not admit it to be filed,
tion acknow-
ledged, revoked his warrant, the court would not suffer any proceeding upon the judgment
without their leave. Manser v. Shelley, Raym. 69.] Salk. 87. pi. 6. Vide Raym. 69.Latch 8.
Far. 2. 93. 2 Ld. Raym. 766. 849, 850. 2 Stra. 718. 882. 1081. Andr. 54. 509. Barnard,
K. B. 357, 358. 404. Cas. temp. Hardw. 158. Barnes, 270. [(rf) A judgment entered up by
an attorney, on a warrant of attorney given to him after the death of his testator, as of a term
when his testator was alive, will be set aside. Gainsborough v. FoUyard, Stra. 1121. If it
be made appear to the court that the party is dead at the time of moving to enter up judg-
ment, they will not allow it to be done. 2 Stra. 1081. But this relation does not operate
in adversary suits. Sibbet v. Russel, Ca. temp. Hardw. 183.] l|See Tidd's Prac. 551.
(9th edit.)]]

(F) Of his Fees and Disbursements, and the Remedy
for the Recovery of them.

Vide Cro. Cut. T\^ the 3 Jac. 1. cap. 7. it is enacted, " that no attorney,
159. and title " solicitor, or servant to any, shall be allowed from his client

Maintenance. <« or master, of or for any fee given to any serieant or counsellor

(aUf an at- « * 1 c c c • v

tornev alleces ^^ > ^^ ^^ ^"^ ^""^ ^^ sums or money given tor copies,

a special pro- " to any clerk or clerks {a), or officers in any court or courts of

raise to pay, *' record at Westminster (b), unless he have a ticket subscribed

the statute^ a y/'ii\i the hand and name of the same serjeant or counsellor,

pleaded Salk " ^^^^^ ^^ clerks, or officers aforesaid, testifying how much he

86. pi. 1. *' ha.\h received for hi« fee, or given or paid for copies, and at

Comb. 126. " what time, and how often ; and that all attorneys and solicitors

^u ^*K ^h' '^ " ^^^ (^) gi^^ ^ t^"^ ^i^^ unto their masters or clients, or their

counts in the " assigns, of all Other charges concerning the suits which they

declaration; " have for them, subscribed with their own hand and name,

the first for *' before such time as they or any of them shall charge their

work done in « clients with any the same fee or charges."
prosecuting, *' *="

&c. 2d. Upon an executory consideration to prosecute and defend suits, and alleging a per-
formance. 3d. Upon a general insimul computasseL Carth. 57. Show. 48. B.C. 2 Barnard.
K. B. 164. (Jb) Therefore does not extend to matters transacted in, or where part of the busi-
ness was done in an inferior court, and part in Westminsler. Carth. 147. (c) rw/e Raym. 245.
and sKeb. 118. 514. Wiiere this clause of the statute was pleaded, and held a good plea.
But where the executor of an attorney sued for fees, the court held that it was not necessary
to have the bill signed. Comb. 348. Rep. and Cas. of Pract. C. P. 58. [But, on the defend-
ant's undertaking to pay, the court will, in the case of an executor, refer it to be taxed. Imp.
K. B. 482. Weston v. Pool, 2 Stra. 1056.] ||Penson v. Johnson, 4 Taunt. 724. ;11 [though the
practice seems to have been different formerly. Andr. 276. Wellis v. Nicholson, Barnes, 119.
Lee V. Knight, Ibid. 122. Chappie v. Chapman.] This act may be given in evidence upon
non assumpsit pleaded to an action brought for fees. Show. R. 338. 12 Vin. Abr. 76. pi. 71 .

Salk. 89. pi. 1. The executor of an attorney brought an action for fees and

law business done by his testator ; defendant moved to refer

See note (c), the plaintiff's demand to the master, but denied, because all the

■*"-^'^ ■ business was done in another court; otherwise, had the business

been done in this court, or partly in this ; and besides, the

plaintiff was an executor.

2G.2. C.23. By the 2 G. 2. c. 23. § {d) 23. made perpetual by 30 G. 2.

{d^Thi c. 19. ^ 75. it is enacted, " that no attorney of the Courts of

does not ex- " King's Bench, Common Pleas, or Exchequer, SfC' solicitor

tend to any " in Chancery, ^c. shall commence or maintain any action or

- ■■-■-■■ '"i • - 1 ^^ ^^

(F) Fees, Disbursements, and Recovery of them.

411

** suit for the recovery of any fees, charges, or disbursements at ^^}^ ^^ ^^^^ ^"^

*' law or in equity, until the expiration of one month or more {e) due^rom'one

" after such attorney or solicitor respectively shall have delivered attorney and

" unto the party or parties to be charged therewith [g), or left solicitor to

" for him, her, or them, at his, her, or their dwelling-house (7i), another. Stat.

" or last place of abode, a bill of such fees, charges, and dis- § g. . ' lUnd see

" bursements, written in a common legible hand, and in the Nelson v.

" English tongue, (except law terms and names of writs) and in Garforth,

" words at length, (except times and {i) sums) which bill shall i^*^ J '

" be subscribed with the proper hand of such attorney or soli- Bridf^es v.

" citor respectively [Jc), and upon application of the party or Fran°cis,

" parties chargeable by such bill, or of any other person in that Peake's

" behalf authorised, unto the lord high chancellor, or the ^d . j^''li,
ic ^ c ^ ^^ r ■, ^ • 1 [But Under thc

master oi the rolls, or unto any ot the courts, or unto a judge general juris-

** or baron of any of the said courts respectively, in which the diction of the
" business contained in such bill, or the greatest part thereof in courts an
" account or value, shall have been transacted ; and upon the ^S^"^ ^"*
** submission of the said party or parties (/), or such other fgrred to be
" person authorised as aforesaid to pay the whole sum, that taxed ; and it
" upon taxation of the said bill shall appear to be due to the hath accord-
" said attorney or solicitor respectively, it shall and may be ^PS y ^^^
" lawful for the said lord high chancellor, the said master of pioyer bring-
" the rolls, or for any of the courts, or for any judge or baron ing into court
" of any of the said courts respectively, and they are hereby the sum re-
" required to refer the said bill, and the said attorney or soli- ™n'"he amount
" citor's demand thereupon, (although no action or suit shall oftheplain-
" then be depending in such court touching the same (wz),) to be tiff's claim,
" taxed and settled by the proper officer of such court, without the suni that
" any money being brought into the said court for that pur- ^y°"gj ^ ^^'
" pose (n) ; and if the said attorney or solicitor, or the party or to be after-
*' parties chargeable by such bill respectively, having due wards repmd.
" notice, shall refuse or neglect to attend such taxation, the ^^ p°rie
" said officer may proceed to tax the said bill ex -parte, (pend- j^^^^ Q^g'
" ing which reference and taxation no action shall be com- Dou"1.200.
** menced or prosecuted touching the said demand); and upon Dixon v. Plant,
" the taxation and settlement of such bill and demand, the said ^^'^ ^ ^- ^•
" party or parties shall forthwith pay to the said attorney or ^^^ Wildbore
" solicitor respectively, or to any person by him authorized to y. Bryan,
" receive the same, that shall be present at the said taxation, or 8 Price, 677.,
" otherwise unto such other person or persons, or in such where an ap-
" manner as the respective court aforesaid shall direct, the [^e'^client to
" whole sum that shall be found to be or remain due thereon ; the Court of
" which payment shall be a full discharge of the said bill and Exchequer
" demand ; and in default thereof, the said party or parties ^o"* referring
" shall be liable to" an attachment or process of contempt (o), or for uxation
*' to such other proceedings at the election of the said attorney was refused.]]
" or solicitor, as such party or parties was or were before liable [(<?) If action
" unto : and if upon the said taxation and settlement it shall be he brought be-
" found that such attorney or solicitor shall happen to have pu-jjtjon of "a
" been overpaid, then in such case the said attorney or solicitor month after
" respectively shall forthwith refund and pay unto the party or the delivery of

« parties ^^c bill, it is a

412 ATTORNEY.

ground of non- « parties entitled thereunto, or to any person by him, her, or
suit ; but not « xhem authorized to receive the same, if present at the settling
stay proceed- " thereof, or otherwise unto such other person or persons, or iu
ings. Harper " such manner as the respective court aforesaid shall direct, all
V. Leech. " such money as the said officer shall certify to have been so

Barnes, 123. a over-paid ; and in default thereof, the said attorney or so-
enable an at-** " ^icitor respectively shall in like manner be liable to an attach-
tomey to set ** ment or process of contempt, or to such other proceedings at
q^his bill, it « the election of the said party or parties, as he would have been
IS not neces- (s subject unto if this act had not been made : and the said re-
slwuld deliver " spective courts are hereby authorized to award the costs of
it a month " such taxations to be paid by the parties, according to the event
before; he « of the taxation of the bill, (that is to say) if the bill taxed be
must not m- « jggg ^jy ^^ sixth part than the bill delivered (p), then the attorney
it^at t^ie trial " *^^ solicitor is to pay the costs of the taxation ; but if it shall
by surprise. " not be less, the court in their discretion shall charge the attor-
Murphyv. « ney or client, in regard to the reasonableness or unreason-
Cunningham, « ableness of such bills."
Lxcliequer,

1793. ; but if he deliver it time enough for the plaintiff to have it taxed before the trial, that
is sufficient. Martin v. Winder, E. 23 G. 5. Dougl. 199 ] ||The case of Murphy v. Cunning-
ham is reported in 1 Anstr. 198.; and it is there left doubtful whether the court considered
delivery a month before necessary. In that case, however, no bill had been delivered"
at all, which brought it within the case of Martin v. Winder.|| [The object of the legislature in
making this requisition was, that the client may have due time to examine the charges, and
take advice upon them if necessary ; and therefore the attorney must not only deliver the bill,
but leave it with the client ; if he take it back again, the statute is not complied with. Brooks
v. Mason, 1 H. Black. R. 290. 1 Stra. 6-33. It seemeth to have been formerly a common
practice with attorneys to deliver in their bills at any time pending the suit. Barnard. K. B.
316. But the client having this time given him to examine the bill, and a summary way of
trj'ing the reasonableness of the items by reference to the master, shall not be allowed if he
put the attorney to his action to discuss the items at the trial ; for if the business were really
done, the delay of the defendant for more than a month in objecting to the quantum, is an
admission that he thinks that reasonable. Dougl. 198, 199. Williams v. Frith,. Harper v.
Till.] iJAnderson v. May, 2 Bos. & Pull. 237.11 [But a bill may be taxed after action brought,
and at any time before verdict or judgment, if the money be not paid. Shaw v, Pickering,
B. R. M. 30 G. 3. Dougl. 198. notes.] HThe term month here means a lunar month. Hurd
V. Leach, 5 Esp. N. PcC. 165. (g) The attorney having been changed in the progress of a
cause a judge's order was afterwards obtained by the second attorney for the delivery of a bill
signed by the first attorney, which delivery was accordingly made to the second attorney ; and
this was held a sufficient delivery to " the party to be charged therewith," to enable the first
attorney to bring his action against the client for the amount of such bill. Vincent v. Play-
maker, 12 East R.372. And where several are jointly liable the delivery of a copy of a bill to
one of them from whom the attorney received his instructions, is sufficient. Finchett v. How,
2 Camp. 277. ; and see Oxenham v. Lemon, 2 Dow. & R. 461. (A) Leaving it at the count-
ing-house is not a good dehverj'. Hill v. Humphreys, 2 Bos. & Pull. 543. A mistake in
the date of items which does not mislead does not vitiate the delivery of the bill a month
before action brought. Williams v. Barber, 4 Taunt. 806. An attorney will not be allowed
on taxation of costs to vary from the bill thus delivered, so as to increase the charge oa
any item ; and it will be considered strong presumptive evidence against any additional items.
Loveridge v. Botham, 1 Bos. & Pull. 49. A copy of the bill delivered is good evidence. An-
derson v. May, 2 Bos. & Pull.257.|| [(i) By 12 G. 2. c. 15. § 5. the bill may be written with
such abbreviations as are commonly used in the English language] ; Hand see Reynolds v.
Caswell, 4 Taunt. 193.|1 [{k) Taxation cannot regularly be applied for before bill delivered.
Cowper V. Milburn, Barnes, 126. ; but the delivery of the bill may be compelled. Imp. K. B.
479. (I) Where a person who has obtained an order of taxation dies, his representative shall
not revive it, but on an undertaking to pay. 2 Atk. 114. (jh) Heretofore, it seemeth, that no
rule could properly be made for taxation, unless there was an action pending upon the bill.
Springate v. Springate, Salk. 332.] HThe want of a proper signature will not entitle the de-
fendant, who has been arrested by an attorney for fees, to be discharged out of custody, on

enterin"

(F) Fees, DisbiirsemeniSt and Recovery of them. 4J^

entering a common appearance, this omission being a matter of defence on the trial. Tomlin-
son V. Clark, 4 Moore, 4.1| [(h) The year before this statute passed, Lord Chancellor King
declared, that he first introduced the practice of bringing in the money into the courts of law
when he was Lord Chief Justice C. P. ; and that the same rule was afterwards adopted by the
Court of K. B. ; for the party being stopped from suing at law, he thought it reasonable that
the attorney should have security for his money; but his lordship refused to do it in Chancery.
Mos. 68. p. 40. And this was thought, saith Lord Hardwicke, a great hardship on clients at
the time of making the act, because an attorney might make a very imreasonable bill, and put
a burden on his client to raise it: the act, therefore, varied the rule both of courts of common
law and equity ; so that the client submitting to pay what should become due, the bill should
be taxed, and that without bringing the money into court. 2 Ves. 451. In general, accounts
cannot be taken on taxation of a bill, much less can the client after taxation allege an ante-
cedent demand, and desire to have that deducted; this would be to open a judgment (for this
is a judgment of the court upon the client's own submission to pay what may be due), and
would make these things so uncertain that there would be no end of them. Ibid, (o) In
equity, after taxation, the solicitor may take out an attachment for the bill without first of all
taking out a subpoena. But he must previously leave a copy of the order of taxation, and the
master's report of the sum at which the bill is taxed, at the client's house. 2Atk. 114.
Barnard. Ch. 266. {p) But the executor of an attorney pays no costs, although above a sixth
part be taken off. Weston v. Pool, 2 Stra. 1056. Where an attorney accepted a less sum
than he demanded in discharge of his bill, and the bill was afterwards taxed, and a sixth part
of the sum originally demanded taken off, the court considered the sum accepted in full of his
bill as his demantl; and, therefore, that he was not absolutely liable to pay the costs of tax-
ation. EcoUier v. Dutour, Barnes, 128.]

II The provisions of this statute have been construed favour-
ably for the client.

Thus a charge in an attorney's bill for a dedimus potestatein, Ex parte

has been held a sufficient item to enable the court to refer the Piickett,

whole bill for taxation, althou<jh the other char^jes were entirely ^^^J^- 266.

. ^ ". "^ ^50 a cnarffe

for conveyancing. So also a charge for attending at a lock-up fy^ preparing

house and obtaining the defendant's release, and filling up a a warrant of
bailbond, renders the bill taxable, (a) But a charge for pre- attorney ren-
paring an affidavit of the petitioning creditor's debt and bond .. ^j ^^ ^
tor obtaining a commission of bankrupt, was held not a taxable taxed. Sandoa
item. (6) V. Bourn,

4 Camp. 68. Weld v. Crawford, 2 Stark. 538., and Wilson v. Gutteridge, 3 Barn. & C. 157.;
scd vide 3 Barn. & A. 488. See also the judgment of Lord Eldon C. J. in Hill v. Humphrej's,
2 Bos. & Pull. 545. In this last case a bill had been delivered, though not in conformity with
the directions of the statute. But where no bill had been delivered at all, Lord Kent/on
allowed evidence to be given of business done as conveyancer, though the plaintiff was pre-
cluded from recovering on the other items of his bill. Miller v. Towers, Peake N. P. C. 102.
And the same doctrine was laid down in Mowbray, Gent, one, &c. v. Fleming, 1 1 East, 285.,
where, under like circumstances, the plaintiff was permitted to recover for such items as were
not taxable, although a bill of particulars had been delivered under a judge's order, containing
other items which were taxable. («) Feame v. Wilson, 6Barn. &C. 86. (i) Burton v.
Chatterton, 3 Barn. & A. 486. ; and see 5 Barn. & A. 898.

So where the whole is for business done at the quarter ses- Ex parte Wi\-
sions, the bill may be referred to the master for taxation. liams, 4 Term

11. 494.; and see Dougl. 197.
And an attorney was not permitted to recover for business Clarke v. Do-
done at the quarter sessions, where the bill, though properly "ovan, 5 1 erm
delivered was not signed as required by the statute.

An attorney of the superior courts cannot maintain an action Smith v. Wat-
for business done in the Court of Insolvent Debtors without ^'^^°"^^ P
first delivering his will as directed by the statute. ^^.^

And even fees charged by an attorney as steward of a court Luxmore v.
leet have been considered taxable. Lethbridge,

5 Barn. & A. 898. Sec also 5 Price, 280., and 2 Taunt. 321.

Money

ATTORNEY.

Crowder and Money paid by an attorney for costs which his client is
others V. Shee, adjudged to pay, is a disbursement within the statute, and cannot
But where the ^^ separated from other items in the bill.

attorney, at his client's request, having put in bail paid the debt and costs, it was held, that he
might recover for this disbursement without delivery of a bill according to the statute ;
no charge having been made for his own labour. Prothero v. Thomas, 6 Taunt. 196.
1 Marsh, 539.

Hillier v. ^"' where the charges are for business done entirely out of

James, Barnes, any court, the courts at Westminster will not interfere ; as where
41. Williams the bill is solely for conveyancing, or for business done in par-
V. Odell, liament(a), or for business preliminary to the suing out a com-

Burton'v. mission of bankruptcy.

Chatterton, 3 Barn. & A. 486. (a) See sVes. & Bea. 21, For establishing a taxation of
costs on private bills in the House of Lords, it is enacted by 7 & 8 G. 4. c. 6-1. ^ I & 2., that
on application made to the Clerk of Parliament as to the costs and expenses of such bills, he
shall direct the same to be taxed by such persons as he shall appoint ; and in actions ai^ainst
persons liable to pay, the speaker's certificate shall have the effect of a warrant to confess
judgment. And there is a similar provision for taxing costs on private bills in the House of
Commons by 6 G.4. c. 123. § I. & 2.

By the stat. 6 G. 4. c. 16. § 14. (the Bankrupt Act) "the
" petitioning creditor or creditors shall, at his or their own
" cost, sue forth and prosecute the commission, until the choice
" of assignees ; and the commissioners shall, at the meeting
" for such choice, ascertain such costs, and by writing under
" their hands direct the assignees, (who are thereby thereto
" required,) to reimburse such petitioning creditor or creditors
" such costs, out of the first money that shall be got under
*' the commission; and all bills of fees or disbursements of
" any solicitor or attorney employed under any commission,
" for business done after the choice of assignees, shall be settled
" by the commissioners, except that so much of such bills
*' as contain any charge respecting any action at law or suit in
*' equity, shall be settled by the proper officer of the court in
" which such business shall have been transacted, and the same,
" so settled, shall be paid by the assignees to such solicitor or
" attorney : provided, that any creditor who shall have proved to
** the amount of twenty pounds or upwards, if he be dissatisfied
" with such settlement by the commissioners, may have any such
" costs and bills settled by a master in chancery, who shall receive
" for such settlement, and the certificate thereof, twenty shillings
" and no more." The former part of this clause appears to have
been taken from the stat. 5 G. 2. c. 30. § 25. upon which it
has been holden, that the petitioning creditor is liable to the
solicitor for the expense of conducting the commission, up to
the choice of assignees, {b) But, as between the solicitor and
messenger, there is no implied contract on the part of the
former, to pay him his expenses, [c) The solicitor is an agent
merely, and is not to be regarded as a principal, as respects the
messenger; and although he make himself responsible to the
messenger, the petitioning creditor will not therefore be ex-
onerated, without the express consent of the messenger to
discharge him. {d) And the messenger under a commission of

bankrupt.

{b) I Rose,
449.; and see
Holt Ni. Pri.
245.376.

5 Moore, 290.
2 Brod. &
Bing. 457.
S.C. 3 Barn.
&C.43.

4 Dow. & Ry.
621. S.C.

6 C. 350.

8 Dow. & Ry.
52. S. C.

(d) Holt Ni.

(F) Fees, Disbursements, and Recovery of them.

415

bankrupt, may recover from the petitioning creditor, his fees for
his services before the party be declared a bankrupt ; although
the party was duly declared a bankrupt, and the messenger's bill
ordered by the commissioners to be paid by the assignee out of
the estate, {e) The latter part of the above clause of the stat.
6 G. 4. c. 16. § 14. appears to have been taken from the stat.
5 G. 2. c. 30. § 47. upon which it has been determined, that
the bill of costs of a solicitor, under a commission of bankruptcy,
is taxable, though approved by the commissioners, and stated
and allowed in the accounts of the assignees, [g) And an attor-
ney's bill for obtaining a bankrupt's certificate, must be signed
and delivered a month before he can sue thereon, [h) But an
action may be maintained by a solicitor against an assignee, for
business done under a commission of bankrupt, one month after
he has delivered a copy of his bill, although it has not been
taxed by a master in chancery, [i)

Pri.376. ; and
for the mes-
senger's re-
medy against
the assignees,
see ibid. 847.
in notis.
{e) 2 Carr. Sc

P. 123.

is) 3 Madd. R.

49.

{h) 2 Taunt.
521. 1 Rose,
119. S.C.
(») 1 Stark.
Ni.Pri. 278.;
and see
2 Camp. 278.
2 Stark. Ni.
Pri. 59.
Barn. & A. 486.

(a) Dick. 112.
1 Cox, 49. in
Chan.
{b) 1 Wils.
266.

(c)Dougl. 199,
200., and the

The statute of 2 G. 2. c. 23. ^ 23. does not, [a) extend to
any bills of fees, Sfc. due from any attorney or solicitor to
any other attorney or solicitor or clerk in court; but every
such solicitor, attorney, or clerk in court, may use such re-
medies for the recovery of his fees, S^c. against such other
attorney or solicitor, as he might have done before the making
of the said act. And there is a case in Wilson's reports (6), where cases there
a judge of the King's Bench having made an order to refer an cited in no/is.
ngent's bill to be taxed, and the master not having obeyed it, ""oo™^ v.
the court was applied to, and held that the order was irregular, g, 35 q'j
the master declaring he had never taxed a bill for agency. It K. B.; and see
is now the uniform practice, however, of all the courts (c) to refer ^l^^' ^^^- '"^
an agent's bill to be taxed on the application of his employer, (j^^^'p -
and upon his bringing into court the sum claimed by the plain- 677. '

tiff. But the bill of an agent to the attorney employed by the (e')Dougl. 199.
party, in respect of wliose business the agency charges have "' ""'^•
been incurred, cannot be taxed on the application of the client, {d) . ^^^p • ^^j
It is not necessai'y that an agent's bill should be signed or de- edit.) 1, 2.-
livered before the commencement of an action, (e) And where and see the
business has been done by an attorney, for a client who after-
wards becomes himself an attorney, the former need not deliver
a bill signed in order to recover his costs, (g)

(g) 1 Esp. R. 420. 2 H. Black." 589. S. C.

It is not necessary for an executor or administrator of an (A) 1 Barnard,
attorney to deliver a bill of costs, for business done by his tes- ^'^'f^^yeC
tator or intestate before the commencement of an action (h); the p^, cp. 53,

case of Jones,
one, &c. V.
Price,/d.2.(a).
1 Esp. R. 221.

statute 2 G. 2. c. 23. § 23.

beinjj confined to actions

brought by 1 Carr.& P. 5.

the attorney himself, and not extending to his personal repre- (j) 1 Salk. 89.

sentatives : but such a bill may be referred to be taxed, on the - ^tra. 1056.

defendant's undertaking to pay what is due. (i) An attorney de- ^^^' 325^^'

livered his bill, and after his death application was made to tax it, 4 Taunt, 724.;

and above a sixth part was taken off": it was moved that the exe- but see Cas.

cutrix might pay the costs; but the Court of King's Bench held Pr. C.P. 58.

that

416

ATTORNEY.

that she should not : for the words of the act 2 G. 2. c. 23. § 23.
impose them upon the attorney or solicitor only, and the exe-
cutrix is not to blame if she stand upon his bill or make out
one from his books, (k)

Before an attorney's bill has been settled and paid, it may be
taxed as a matter of course, at any distance of time (a) ; but after
it has been settled and paid, and the payment has been long
acquiesced under, the courts will not refer it to be taxed as a
matter of course; nor, as it seems, unless a gross error or im-
position be pointed out. (b) So, where a bond had been given for
the debt five years before, and the vouchers had been delivered
up, the Court of Common Pleas would not refer the bill to be
taxed, saying, that an attorney at this rate could never be safe.(c)
But though an attorney's bill has been settled and paid, yet the
courts, under special circumstances, will refer it to be taxed ; for
the client may by affidavit shew that the business charged was
never performed, or that the charges are fraudulent ; and where
S.^.; but see tjiat jg the case, neither payment, nor a release, nor a judgment
for the money due, will preclude the court from having the bill
taxed, (c?) But overcharges alone, without circumstances shewing
fraud, do not seem to be sufficient, (e) An attorney's bill may also
be taxed, though there was a special agreement between the
attorney and his client that the former should be paid for his time
at a certain rate by the day, besides his expenses (g) ; or though he
has obtained a warrant of attorney from his client for confessing
judgment for the money due upon his bill, and has entered up
judgment thereupon, (h) But the plaintiff having paid to an attor-
ney the amount of his bill, cannot, after a reduction of the bill
by taxation, maintain an action for the difference, (z) And when
a rule has been served for taxing an attorney's bill, the Court of
King's Bench will not grant an attachment against the attorney
for not paying the balance due to his client, until the costs have
been taxed, though the balance is admitted, and it has been
agreed to dispense with the taxation, (k)

. 164. co7Ura. (h) Say. Costs. 322. (i) 2 Stark. Ni. Pri. 85. (k) 2 Chitt. R. 66.
Where an action is brought on an attorney's bill, the court
will order it to be taxed at any time before trial, though after
plea pleaded and issue joined. (/) But it is a general rule, that an
attorney's bill cannot be taxed at the trial of an action brought
2 Bos.& Pull, upon it{m), nor after judgment by default, and a writ of enquiry
2.37. 7 Price, executed (w) : for if the business was really done, (which must be
proved at the trial,) the delay of the defendant for more than a
month in objecting to the quantum is an admission that he
thinks it to be reasonable. In a modern case, however, an
attorney's bill was referred to the master for taxation, after an
action had been brought upon it, and a verdict recovered, on a ;
suggestion that some of the items in the bill would not have
been allowed by the master had it been originally referred to
him for taxation ; but upon the terms of the defendant paying
the costs of the application, and of the taxation, with the costs

Barnes, 119.
1 22. contra,
{k) 2 Stra.
1056. Say.
Costs, 527.

(a) Per cur.
T.34G.3.K.B.
(A) Say. Costs,
.323. Dougl.
199.; and see
14Ves. 262.
1 Ves. & Bea.
126. 3 Ves. &
Bea. 174, 175.
in Chan.
7 Moore, 496.
6 Dow. & Ry.
539. (c) Cas.
Pr. C.P.I 09.
Pr. Reg. 37.

1 Barnard.
K.B. 144, 145.

(d) Say. Costs,
323. Dougl.
199. S P.;
and see 2 Atk.
295. Dick.
405. 14 Ves.
262, 263.
Meriv. 285.
Buck. 111. in
Chan. 5 Price,
42. in Scac.

(e) 14Ves.262.

3 Ves. & Bea.
174.; and see

1 Anstr. 186.
is) S^y* Costs,
322.; and see

4 Bro.Ch. Cas.
550.; but see

2 Barnard. K. B
(/) Per cur.

T. 21G.3.

K.B.

{m) Dougl.

199. ; and see

234. 2 Chitt
R. 65. 1 Car
& P. 627.
(n) Barnes,
124.

(F) Fees, Disbursements, aiid Recovery (if them. . 4.17

of the cause as between attorney and client, the plaintiff being (a)2Chitt. R.
at liberty to take out the money forthwith, which had been paid ^^^^ ^"1 r^
into court, {a) 33. '

The statute 2 G. 2. c. 23. § 23. only requires the delivery of
a bill for the bringing of an action, and therefore though an
attorney cannot bring an action on his bill till it has been de-
livered a month, that circumstance is not necessary to enable
him to set it off: but he must not produce it at the trial by sur-
prise: it is sufficient, in such case, to deliver the bill time
enough for the plaintiff to have it taxed before the trial. (Z>) The (b) Dougl. 199.
delivery of a former bill is conclusive evidence against an in- innotis. Mar-
crease of charge in a subsequent bill, on any of the items con- *'V ^."^ '^*^*?»
..-,•. ^i ^ . ' . 1 "^ • IT administratrix,

tamed m it, and strong presumptive evidence against any addi- y. Winder/

tional items ; but if there were any real errors or omissions in one, &c. E.
the former bill, they may be rectified, (c) And a mistake in the 23 G. 3. K.B.
date of items in an attorney's bill which does not mislead will not g p " ^^'^^^*
vitiate the delivery, {d) ' If a defendant be arrested by an attor- (^S i Bos. &
ney for fees, after a bill of costs has been delivered to him with- Pull. 49.
out being signed, he cannot be discharged out of custody on W * Taunt,
entering a common appearance in the Common Pleas, as the ^^ '
want of such signature will be a defence to the action, on pro- (e) 4 Moore, 4.
ducing the bill at the trial, {e)

The statute requires the bill to be delivered one month or
more before the commencement of the action, which is con-
strued to be a lunar month, {g) And where a bill of costs is de- , ■. ^ j. ^
livered to the party, it must be left with him, and not taken iqq,
back again. (//) When two persons are liable to an attorney for ,, . ,, rvo.f*
business done on their joint retainer, it is sufficient for him to 290.
deliver a copy of his bill to one of them, from whom he received
his instructions, and to whom the management of the business
was left by the other (?) ; but it seems thut the delivery of a copy (j) 2 Camp,
of the bill in such case to the one who did not intermeddle 277.; and see
would not be sufficient ; for he cannot be considered as having ^ ^'^'"''o^I7*
authority to receive it for both, nor is he likely to know what ^^ji"^*
foundation there is for the charges in the bill, {k) And where a {k) 2 Camp,
party in a cause having changed his attorney in the progress of it, 277.
a judge's order was afterward obtained by the second attorney
for the delivery of a bill signed by the first, of his fees and dis-
bursements, wliich delivery was accordingly made to the second
attorney ; this was holden by a majority of the judges of the

King's ]3ench to be a sufficient delivery of the bill to the party
to be charged therewith, within the words and meaning of the

statute, so as to enable the first attorney to bring his action

against the client for the amount of such bill.(/) So the delivery f/) 12 East,

of a bill to the attorney of the party, to be charged, is deemed 572.

sufficient if the party himself attend the taxation, or the bill J"'^ jr9°^jj''

be shewn to have coine to his hands, (w) If the bill be not puif. 345'.

delivered to the party, it must be left for him at his dwelling- butscei Stark.

house or last place of abode ; leaving it at the counting-house not Ni. Pri. 524.

not being deemed sufficient, (n) ^ ^°^^» '^''•"•

In an action on an attorney's bill, it is sufficient to give in

evidence a judge's order to tax the bill, they defendant's under-
* Vol. I. E e taking

418 ATTORNEY.

takirifr to pay what shall appear to be due, and the master's
(a) 2 Camp. allocatw thereupon [a) ; and the defendant will not be permitted to
496. question the reasonableness of the items before a jury, {b) In such

^J^oug\A99. an action the nisi prius record is good prima facie evidence, to
( ^ B^^ & shew that the action was not commenced till the expiration of a
Pull. 265. month after the delivery of the bill, (c) And where it is material

(d) 2 Camp. for the defendant to shew that the action was commenced earlier
f^\' n s '^^" ''' ^PP63''''to have been by the nisi jvins record, the declar-
Pulf 937 ation delivered by the plaintiff is admissible evidence, {d) When

3EsprR.'i67. ^" attorney has regularly delivered a bill signed, he may give a
S. C. Peake's copy of it in evidence, without proof of notice to produce the ori-
Evid. (5th ed.) ginal. {e) It may indeed be inferred from one case {g), that unless
104.261. idc, ^ duplicate of the bill be kept, the plaintiff cannot give parol
(g) 2 Camp. evidence of its contents without a notice to produce it : but iu a
110. subsequent case it was decided, that a copy of an attorney's bill

pL^ ^^J"* ^ "°^ signed by the attorney, the original of which, duly signed,
se'e^7 Moore ^^^^ ^'^^^ delivered to the defendant, is admissible in evidenct
112. 5Bro. & with proof of notice to produce the original. (Ji)
Bing. 288. S. C.

If an attorney refuse to deliver a signed bill to his client, the
latter may compel him, by taking out a summons before a judge
entitled in one of the causes in which he was concerned ; and
in the King's Bench, if the attorney on being served therewith
do not attend, an order will be made for delivering it within a
reasonable time. In the Common Pleas three summonses are
necessary in case of nonattendance, before an order can be ob-
f*^Iinp. C.P. tained. (/) And, in either court, if the attorney still neglect to
(I) 2 Chitt K- ^^^^'^'^^ itj the order should be made a rule of court ; and on
66, * ' personal service of the rule (/-), and making affidavit thereof, the

court on motion will grant an attachment. The bill being de
livered, a judge's summons may be obtained for the attorney to
shew cause why it should not be referred to the master in th&
(/) For the King's Bench, or one of the prothonotaries in the Common
uSrtddn<rto ^^^^^^ t® ^e taxed; upon which, if the attorney attend, and tha
pay an at-° i^^g^ think it reasonable, he will make an order of course for
torney's bill taxing it, on an undertaking signed by the client or his attorney
on taxation in in the judge's books, to pay what shall appear to be due upo
quer^i^e^fidd ^"^^ taxation. (/) And in the King's Bench a peremptory order "^
Append. ch. 14*. ^^^^ ^^ made in like manner upon the first summons, in case ol
§55. (9th ed.) nonattendance (m) ; but in the Common Pleas, if the attorney do
(m)Imp.K. B. not attend, there must be three summonses taken out, and an
506 ^ affidavit made of the service and attendance thereon before the

(«) imp. C. P. judge will make an order ex parte, {n) But in neither court can tlie
{7th edit.) client have a summons for delivery of the bill and taxing it toge-
556y 557. ther. (o) In the Exchequer a rule for an attachment against tii

(loth^edit.) attorney for not delivering his bill of costs, is not absolute ir
506. Banies, 'he first instance, but only a rule nisi (p) ; and where it appeant i'
126. on shewing cause that the bill had been delivered since the rui(

(p) 11 Price, was served, and illness was assigned in the affidavit as the cause
^^''' of not obeying the order, the rule was discharged withou ,

iq) Id. ibid. costs, (y) II

(F) Fees, Disbursement Sy and Recovery of them, 419

[A solicitor cannot bring a bill iii equity for his bill : nor can Parry v.
he go there for an account after his bill has been taxed, upon Owe"i Ambl.
the ground that the officer has not made proper allowances. diston v ^ '

Cross, Com. R. 611.

Where a client, unassisted by an attorney, has paid a law-bill, Walmesley v.
and accepted of a receipt for it, a court of equity has allowed "oo^i> 3 Atk,
him to open the whole account notwithstanding, and to take ex- gi^ ^villiam
ceptions to any improper or extravagant charges. And where a Sanderson v.
client has given an attorney a bond or mortgage to secure the Glass, 2 Atk.
payment of what was charged to be due to him on account of a ^^^' "^"' ^
Jaw-suit, the courts of equity have relieved the client, and or- j^q„ |^^^ ^^m*
dered the bill to be taxed : and the ground on which this relief not grant an
is given, is, the great power and influence which the attorney has application of

over his client. Per Lord Hardwicke. this nature,

see Piston v.
Dunbar, 1 Anst. 186.|| Proof v. Hines, Cas. temp. Talbot, 115. Newman v. Payne, 4 Bro. Ch.
li. ace.

A solicitor having taken a judgment of his client for 400/. Drapers' Cora-
whilst the cause was depending, and several extraordinary V^^^y v. Davis,
charges appearing in the bill. Lord Hardwicke referred it to be ^ p^^^" ^j^^'^ p
taxed, though it had been adjusted and allowed seventeen years s P.
before, and ordered the judgment and securities to be given up.

An attorney cannot be compelled to deliver up any deeds, or Comb. 43. 337.
writings belonging to his client, which may come into his hands 4 Term R.
in the course of the business in which he hath been engaged, ^^3. Mos.
until his bill, taxed by the proper officer, hath been paid. But ^^^'
whether he have such a lien upon deeds and writings the pro-
perty of third persons, which he hath so become possessed of, is
a matter of doubt.

Where an attorney had been employed by one who after- Park v.
wards became bankrupt, and the assignees petitioned to have Carter, C. P.
the papers delivered up, and that the attorney might come in ^""' ^\^^'
for his demands part passu with the other creditors ; the Lord gusi, Mich.
Chancellor said, that the attorney had a lien upon the papers in 1734. 7Vin.
the same manner against the assignees, as against the bank- Abr. 74. 1 Co.
rupt; and though it doth notarise by any express contract or l 5^4
agreement, yet it is as effectual, being an implied contract by '

law. But, he said, that papers received after the bankruptcy
could not be retained.

An attorney hath, in consideration of his trouble, and the Dougl.238.
money he is in disburse for his client, a right to be paid out of ^ ^^^- ^^^*
the duty decreed, or money recovered by him. If such money
come to the attorney's hands, he may retain to the amount of
his bill. He may stop it in traiisiUi, if he can lay hold of it.
If he apply to the court, they will prevent it from being paid over
till his demand is satisfied ; and it seemeth, that a payment by
a defendant after notice from an attorney not to pay it till his
bill is discharged, would be a payment in his own wrong, and
like paying a debt, which hath been assigned, after notice. He 1 H. Black. R.
is entitled to be paid out of money levied by a sheriff upon an ^22.
execution under a judgment recoveretl by his client; notwith-

E e 2 standing

49() ATTORNEY.

stan(lin<r the slicrlfF may have had notice from the party against
whom the execution issued, to retain the money, as the court
would be moved to set aside the judgment for irregularity ; and
notwithstanding a docket may have been struck against the client
becoming a bankrupt.
Owston V. The assignees of a bankrupt cannot take out of court money

U Bryan, paid ill by a defendant in an action at the bankrupt's suit till

' ''' they have paid his bill.
Barnslcy v. It hath been determined in equity, that he hath a lien on a

182^ i'"/ '""''itic's estate for money expended by him in suits at law and
Price 2 Ves. *" equity. But the reporter questions this doctrine. However,
407. in a case in the following year, on a petition by a solicitor to^

be paid his bill of costs for taking out a commission of lunacy^' j
out of the lunatic's estate, and not to be obliged to come under ■
a commission of bankrupt which had issued against the person
who took out the commission of lunacy, Lord Hardivicke said,
that solicitors have this equity allowed them, to be entitled to a
satisfaction out of the fund for their expenses, whether in the
way of suit, or prosecution in lunacy, or bankruptcy.
3 Atk. 720. His lien upon a duty decreed his client gives him a preference

to specialty creditors. I

Sharston v. If employed in a suit by husband and wife for a term of '

A^ 103^^'" y^^^^ "^ ^"'ft^^^ °^ ^^^^ ^^'^^» '"^"^^ ^^^^ husband die leaving no
assets, equity will decree him satisfaction out of the profits of
the term.

5 Ves. 25. The courts will not permit an attorney to be defeated of this

remedy for his costs by collusion between his client and the de-
fendant ; as where a client, at whose suit a defendant was in
custody for nonpayment of costs taxed for scandal and im-
pertinence, executed a mere voluntary release to the defendant
without the knowledge of the clerk in court, the Chancellor
would not discharge the defendant till he had paid the clerk
his fees.

Doiigl. 238. This however is to be confined to cases of fraud and collu

^•^^- sion ; for if the client has fairly and honestly terminated the

affair with his adversai-y, and the tcJiole debt and costs have been
paid, this equity cannot be set up against the defendant.

1 H. Black. R. The attorney's lien upon the costs is subject to the equitable

25. 2 Black. R. claims of the parties in the cause.

827. '

4 Term R. But where a party against whom a judgment hath been ob-

123. tained applies to get rid of the judgment, the court will take

care that the attorney's bill is satisfied.

As where A. recovered against i?., and B. recovered againstj
A. and C, and B. moved to set off the damages which he had
recovered against those obtained by A. ; the court insisted u})cn
his undertaking to satisfy the bill of A.'s attorney in the first
action, he having a lieu on the judgment for his costs. j

Ambl. IDS. If a solicitor recover an estate for his client in equity, and tie

chent die, he loses his lien upon the estate in the hands oi^ tjie
heir at law ; but if the suit be revived, the lien will revive tda,
Pa- Lord HardwicJcc.l

i (G) Oi

(H) Proceedings against an Attorney for Mishcluwkmr. 42P

(G) Of the Privileges which an Attorney has.

A TTORNEYS have privilege (a) not to be sued in any other 2 Leon. 256.
courts except those in which they are sworn and admitted, J^trfe head of
because of the prejudice that may accrue to the business of those /•/ jA^f '„"J)j/
courts in whicii their attendance is required ; neither aa'e they to («) Bm this
be held to special bail, because they are obliged to attend, and privilege an
Uierefore are presumed to be always amenable ; also as officers attorney shall
of the court they are entitled to the process of attachment, and ",^^ j['^n^»s\uit.
may sue by attachment of privilege. 2 Roll. Abr.

270. Bro. Sivpcrscdeas, I. 9 H. 6. 44. [But actions qui lam are not considered as the king's
suits. TJlayii)..275. 1 Black. II. ,-73. Cowp. .567.] Nor unless there be the same remedy
in his own court; therefore shall not have it when money is attached in his hands by foreign
attachment in the sheriff's court in London. Sand. 67. Vide Comb. 427. Nor in an action real
against an attorney of the King's Bench. Sund. 67. Nor appeal against an attorney of the
Couunou Pleas. Sand. 67. Nor when iie sues, or ia suetl in aider droit, as executor or admi-
nistrator. 12 Mod. .516. Ld. Raym. 55.5. Hob. 177. Salk. 2. pl.4. Nor when one attorney
sues another, if both of the same court. 2 Mod. 298. 2 Roll. Abr, 27 I. Barnes, 35. ; [for if of
diflcrent courts the plaintiff is entitled to his privilege. 2Stra. 1141. 1 BUick.R.19.] Nor
when he joins, or is joined in the same action with others. Vent.2Jf8. Dyer, 277. Godb. 10.
SJ-Roll. Abr. 275.

Also if an attori

CnOSen C011Slai)le, nu may niivc a, will, \ji i>iivinri;c nji ma vtio— «> • i „„

a ri-11- -1 •• March, oO.

Ciiargc, lor Ins attenilance being necessary in tlio.se courts, it is Vent. 16. 29.

apparent that he cannot execute any inierior oflice in person ; 2 Keb. 477.

and this privilege iie shall have, not only whore there is no spe- ^^s. Lev. 265.

cial custom concerning the election of constables, but also where *^'*)'"'-

they are chosen by a particular custom in respect of their estates,

or otherwise, for that no such custom shall be intended to be

more ancient than the usages of those courts, and therefore shall

give way to them.

Vide tit. Privilege (B).

)rney of any of the courts of Wcstminster-\\i\\\ be Cro. Car. 389.
3, he may have a writ of jirivilege for his (lis- »i°^'i, .-q

(H) Of Offences and Misbehaviour for which lie is
punishable ; and herein of tlie I'orin of the ProceetU

ings against ium.

A TTOUNEYS are officers of the court, and liable to be pu- o Hawk. P. C
nished in a summary way, either by attachment, or having 217, 218, 219.-
their names struck out of the roll of attorneys, l()r any ill St. W. 1.21.
practice attended with fraud and corruption, and committed 173^'siilcV'G
against the obvious rules of justice and common honesty: but Cro. Car.'74.
the court will not easily be prevailed on to proceed in this 6 Mod. 1 6.
manner, if it appears that the matter coinplaineil of was rather i«7. 8 Mod.
owing to neglect or accident, tlian design.; or if the party injureil g*^'^' gfj, /^y
has other remedy provideil by act of parliament, or action at law. ^^~\ q^-j] qqq
Freeman, 74. 4 Mod. .567. 2 Black. R. 991. 4 Burr. 2060. Pitt v. Yalden. jj A special case
was staled for the purpose of obtaining the opinion of the court, which set out a flctitlous
statement of previous proceedings at law. The court fuied the attorney. 3 Barn. & C. 597...
SDow. & Ry. 389.11 ['^" attorney, convicted of felony and punished for it, was struck oil" the
roll as a person imfit for the |)rofesbion, though no particular misconduct was imputed to him.
ifjr parle Brownsall, Cowp. 829.]

E c S Out

^22 ATTORNEY.

38 K. 3. a b- But if an attorney take upon him to prosecute or defend a suit
Rastal, 93. for another (a), without any manner of directions from him, the

1 Wils 30^'^ court will grant an attachment against him. [So if he put
Oppenlieim v. another attorney's name to process without his authority.]
Harrison, i Burr. 20.] (a) Also a person taking upon himself to prosecute or defend any
action, who is no attorney, is liable to be punished in this manner, whether he had any direc-
tions or not. 2 Hawk. P. C. 217. In strictness, he is liable to be punished unless he record
his authority or warrant of attorney in time, 2 Hawk. P. C 217. See too 25 G. 3. c. 80.
j 15., &c.

2 Hawk. P. C. Attorneys are also punishable for base and unfair dealings to-
218. [R, V. wards their clients in the way of business (6), as for protracting
Tew, Say. R. suits by little shifts and devises, and putting the parties to unne-
fhe [t* *^^ss^^y expenses in order to raise their bills; or demanding fees
of gross neg- ^"^^ business that never was done; or for refusing to deliver up
ligence, the to their clients writings with which they had been intrusted
courts will, in the way of business (c), or money which had been reco-
cJmpeTthem' ^'^^^^ ^^^ received by them to their clients' use (d) ; and for
to indemnify Other such like gross and palpable abuses.

their clients from the consequences. Fawkes v. Pratt, 1 P. Wms. 593. But for a mere mis-
take, the clients will be left to their ordinary remedy. Barker v. Butler, 2 Black. R. 780.]
(c) But the court will seldom grant an attachment for the detainer of such writings or money,
without first making a rule on the attorney to deliver them to the party; also it will justify
an attorney's detaining such writings or money for his security, till he be paid all his just fees ;
nor will it ever interpose in this manner, as to any writings or money received by an attorney
on any other account, except only in his way of business as an attorney, but will leave the
party to his ordinary remedy by action. Salk. 87. pi. 5. [But in the case of Strong v. How,
though it appeared that the deeds did not come into the hands of the attorney in the way of
his profession, yet the court ordered him to deliver them up, otherwise attachment. Stra. 621.
8 JVIod.339. S.C. And a like order was made in 3 Term R. 276, where they came into his
possession as steward of a court and receiver of rents. Where an attorney accidentally lost a
deed intrusted to his care, an attachment was granted, but ordered to lie in the office till
further directions. The mode of proceeding in this case seems to be, for the plaintiff to file a
bill in equity against the attorney for a discovery of the deed ; the expense of doing so to be
paid by the attorney. Court v. Gilbert, 2 Barnard. K. B. 263, Where an attorney delivered
back to his client a deed which he had received from him, the court would not, upon the mo-
tion of a third person by whom the deed had been lent to the client, grant a rule against the
attorney to deliver it up. Dottin's case, Stra. 547. Where it appears that a third person is
interested in the deeds, the court will take a security from the person to whom they are deli-
vered to produce them on demand for the inspection of such thu'd person. Hughes v. Mayre,

3 Term R. 275. An attorney of one court practising in another court, thereby becomes ame-
nable in this instance to the jurisdiction of such other court. 8 Mod, 340.] (d) Attorneys em-
bezzling their clients' money excepted out of the insolvent debtors' act.

1 Chitt. R. H Where an attorney is charged by affidavit with any fraud or

186. Ydo, malpractice in his profession, contrary to the obvious rules of
Append, c. 3. . F , ', ' •' • -n j i •

§ 19. justice and common honesty, the court on motion will order iiini

to answer the matters of the affidavit ; and in general, if he posi-
tively deny the malpractice imputed to him, they will dismiss the
complaint : but otherwise they will grant an attachment.

And where an attorney, required to answer the matters of an
affidavit, swore in his exculpation to an incredible story, the
Court of King's Bench granted an attachment against him,
though he positively denied the malpractices with which he was
(e) 6 Durnf. & charged, (e) And where an attorney had behaved himself in
East, 701. such a manner as to affi)rd reasonable ground for thinking he
had misconducted himself in his professional character, although
it turned out, upon investigation, that there was no sufficient

c round

H) Proceedings againsi an Atto-nie^ for Misbehaviour, 4(23

ground for imputing actual misconduct to him, the court would

not give him his costs of the application {g) ; but the court will Cg) 3 Dow. &

not call upon an attorney summarily to answer the matters of ^" ^^^*

an affidavit, charging him with an indictable offence, but will

leave the parties complaining to prosecute the same. (//) It has (A) iBing. 102.

been doubted whether the affirmation of a Quaker is admissible, 7 Moore, 494.

to call upon an attorney of this court to answer the matters of * r" ^ ^"S"

an affidavit (/) : and the true distinction to be collected from all (jn iDow. &

tiie cases upon the subject, seems to be this, that if the object Ry. 121.

of the suit or proceeding be to recover a debt, or give to a party

any legal civil right, the affirmation of a Quaker is admissible ;

and actions on penal statutes are to be considered as actions for

debts ; but that where the object is not to give to the party any rj^s j j)^^ ^

legal civil right, but to punish a person who has done something Ry, 124. per

wrong, the affirmation of a Quaker is not admissible, {k) Baylcy J.

When an attorney has been fraudulently admitted (a), or con- , » v^^^ n
victed, after admission, of felony(6)5 or other offence which renders 991 ^ Tidd,*67.
him unfit to be continued an attorney (c), or has knowingly (A)Cowp.829.
suffered his name to be made use of by an unqualified person (fZ), (c) 6 East, 143,;
or acted as agent for such person {d\ or has signed a fictitious ^"(^jj^jt j^
name to a demurrer, as and for the signature of a barrister (je\ 557. innotia.
or otherwise grossly misbehaved himself (^), the court will order (d)Tidd, 75,
him to be struck off the roll. If an attorney practise, after he J**
has been convicted of forgery, perjury, subornation of perjury, ^^ 738*^*
or common barratry, he is liable to be transported. {Ji) And (g) Potter's
where an attorney had been struck off the roll of the Court of case,H.26G.3.
King's Bench, on the report of the master, for misconduct, the ^* B. Priddle's
Court of Common Pleas, on motion, supported by an affidavit ^^g' • ' * *
of the master's report, struck him off the roll of the latter (/i) St. 12G. 1.
court, (z) But in a subsequent case, the rule for striking of the c. 29. $ 4.
roll was refused ; the contents of the affidavits on which the ^) ^ ^""o^* ^
Court of King's Bench acted not having been stated, and there 4 j^^o^re 319
being no [)roof or allegation that the attorney had been struck §. C.
off for a misdemeanor. (Jc) And striking an attorney off the roll (A) 3 Brod. &
is ni)t always understQod to be a perpetual disability ; for the ^'"S' 2-57.
court have in some instances permitted him to be restored, con- g c°Tidd 67
sidering the punishment in the light of a suspension only. (/)|| (/) 1 Black. R.

222. The like was done by the court in Triii' 57 G. 3. K.B.

Attorneys are punishable for disobeying the rules of court, of Cro.Car. 74.
which they have notice, either expressly or impliedly; also for i^^^ ^^\

I'orging a writ, or any other matter of record, or but attempting pi. 58. Fitz.

to do it; or for taking out a capias which has no original to Attachment, 5.

warrant it; or for receiving money of a client for suing out an ^- '^ J^.'l*^*

original ; and also for the fine due thereon to the king, where in 45^^10")? ^2'

truth no original was sued out, nor any fine paid to the king; or 3 Hawk. i'.C.

for endeavouring to impose upon the court; as by causing an 145. c.22.

action to be brought against one in it, by collusion, without any § M" ^^'""'•

just ground, in order thereby to entitle the party to the privilege ao^H^I'sv.a.

of tlie court, and afterwards, upon the examination of the 2 Inst, ji 5.

matter in court, giving a iidse account of it ; or for giving Lit. R. 4o.

E c t directions '

424. AUDITA QUERELA.

4 Inst. 101. directions to a sheriff concerning what person he should return
Hetl.29. [See on a panel, (a)

too several ^ ^ '

other instances where attorneys are punishable. Stra.420. 576. 899. 1024. C.T. H. 131. 237.
Andr. 27j. 2 Barnard. K. B. 219. Black. R. 2. The striking off the roll is not to be under-
stood as a perpetual disability, but may be considered in the light of a suspension only, and
the party may, if the court sees cause, be readmitted. Rex v. Greenwood, 1 Black. R. 222.]
(a) An attorney ordered to pay costs (as well as his client) having joined in an affidavit, to sup-
port a frivolous complaint, and made resentful declarations, which shewed him to be personally
^ctive in it. 2 Burr. 654.

Evans v. [If attorneys do any thing wrong qua attorneys in inferior

** T' ^^^^'^' courts, the superior courts will punish them for it, for they can-

5 Dow. & Ry. ^^^ ^^^ ^" '^^^ former, unless they are admitted of the latter.]

602.U

AUDITA QUERELA.

\\Vide 2 Saund. AN atidita qiterela is a vfTit to he delhered against an unjust

}h}i'*^'"°'^^ judgment or execution, by setting them aside for some in-

''■" justice of the party that obtained them, which could not be

pleaded in bar to the action ; for if it could be pleaded it was the

party's own fault, and therefore he shall not be relieved, that

proceedings may not be endless.

(A) Who may be relieved by Audita Querela, and

against whom.

(B) In what Cases an Audita Querela will lie.

2 Inst. 673
Dyer, 252.S.P

(A) Who may be relieved by Audita Querela^ and
against whom. i

TF an infant acknowledges a recognizance, statute-merchant or
^j^.,^..^.^... staple, or recognizance in nature of a statute-staple, he can-
^d""^'<^^d^^' "^^ avoid this without an audita querela brought before his full
^oCo°.^43.S,P. ^S^» because his nonage ought to be tried by inspection. i

Noy, 1 6. Yelv. 88. Cro. Jac. 59. 2 Roll. Abr. 57. 2 Bulst. 520. Vide Reg. 149. F. N. B. \
105. That an infant may bring an audiia querela to avoid a statute for his nonage, although it j
be not certified or returned in any court. Andcr. 228. And there said, that the common prac-
tice was so, else the conusor migiit be of age before the conusee would procure it to be certi-
fied, ride- 5 Bulst. 307. Vide title Infant.

Yelv. 155. If ^. being within age becomes bail for i?., and after two scire

Cro. Jac. 646. j-^. and nihil returned, judgment is given against A., Sfc. he may

have

(A) Who mai} he relieved by it, and against 7vhom» 4ii5

have an midita quer'ela and avoid the recognizance, and so tlie S. P. Vide Co.

iudgment thereupon of consequence shall be avoided. J^"** ^7, 88.

•^ ° * * Where an in-

fant was bail, and taken in execution, and he brought an audita querela, and moved ta be
inspected ; the court, as a matter discretionary, refused to admit him to bail till he corrobo-
rated his allegation by the oatlis of witnesses, and a copy of the register where he was born,
was produced ; but if he had brought his audita querela before he was taken in execution he
must have had a supersedeas of course. Carth. 278, 279.

But if ^. being within age enters into a bond to i?., who pro- Cro. Jac. 694.
cures C, without any warrant, to appear for -4., and confesses Vide infra, \et'
a judgment thereupon, yet A. shall not have an audita querela, ^^^u\ ^"
but he must take his remedy by action of disceit against the ^"ould not on
attorney. (a) motion, have

set aside the judgment ?

If tenant in tail acknowledges a statute, and dies, and the Roll. Abr. sos*
conusee sues execution against the heir, he may avoid it by y.°' ~^.^: ^^'
assise, without being put to his audita querela. j3m the issue

at his election may have an a7irf«7« yz^erc/a if he will. Roll. Abr. 305. Cro. Jac. 85. That this
is only an equitable action, and may be brought by a reversioner, or him that has but interctac
tcmmii, or might have been by cestui que tise before the statute. March, 71.

So if a disseisor acknowledges a statute, and the disseisee RolLAbr.304.
enters, the conusee extends the land, the disseisee is not put to Cro. Jac 424.
his audita querela to avoid the extent, because there is not the '^'^'^'
appearance of justice in this extent, the conusor having only a
tortious and unlawful seisin of the land, and consequently no
power to charge it.

But if ^. be tenant for life, remainder to B. his son in tail, A. ^J^' ^^^
enters into a recognizance and dies, C. brings a scire facias, and j 'g ^^^
J5. is returned heir and terretenant, and warned, but makes de- Lev. 41,42.
fault; he can have no audita querela to avoid this execution, S.C. between
because he had a day given him in court to set aside the recogni- jpa.vandGuild-
zance, and it was his folly not to appear when warned. scire facia^on

a judgment, if defendant has a release, but omits to plead it, he shall not have an audita que-
rela. 1 Wils. 98.]

If a statute be acknowledged to two, of which one is an 48 E. 3. 12. b.
infant, and they make a defeasance, and after sue execution Ro"Abr. 312.
contrary to it, an audita querela shall be brought against both,
for it does not appear within the deed that he is an infant ; also ^

the deed of an infant is only voidable, and peradventure he will
affirm it.

If a statute be made to baron and feme, and they make a de- Roll. Abr. 312.
feasance, and sue execution contrary to it, the audita querela [Contra,
shall be brought against both, although the defeasance be void as jj^.^ Brief^*
to the wife; for this action is in lieu of an answer of the execu- pi.gi. Audita
tion, which is sued by both ; and this is all one as if the baron Querela,
alone had made the defeasance, which would have been a suf- P'*,*'* ^^***>
ficient discharge. j 241™'''

If a statute be acknowledged to a ferae sole and J. S., and after 1 1 E. 4. 8. b.
the feme take husband, and J.S. release, and after execution be Roll. Abr. 312.
sued, the audita querela may be brought against the baron and
feme and J. S.

If two executors sue execution for damages recovered by the 21 E. 3. 13. b.

testator,

4^6 AUDITA QUERELA.

Co. Ent. 89. testator, where one hath released, an audita querela lies against

Roll. Abr. 312. both.

That no audita

<7i<tfrc/a lies against the king. Noy, 26. 2Bul8t.525. Jenk. 129.

(B) In what Cases an Audita Querela will lie.

Cro. Eliz. 40. T F a conusee of a statute releases to the terretenant all right, in-
And. 133. terest and demands, together with all suits and executions,

Roll. Abr. 313. jjjj^ afterwards sues execution, the terretenant shall have an audita
29*1 loCo 47 9"^'^l^ to set aside this execution.

But it may be demanded, how a statute, which has the force and solemnity of a judgment, can
be avoided by an act of less notoriety than itself; as a release, which is an act in pais^ must be
confessed to be, which overthrows the established rule unumquodque tolvitur eo ligaviine quo
ligatur. The answer to this is, that notwithstanding the release, &c. from the conusee, the
statute still continues in force; but the law, with reason, construing all men's deeds most
strongly against themselves, by this act precludes the conusee from execution ; but this must
be by bringing an audita querela; for without this, nothing appears to the court destructive of
the statute : the words of the release must be comprehensive enough. Vide Cro. Eliz. 552.
and the authorities suprh.*

* See farther, Com. Dig. 1 V. 485. &c. &c.

Roll. Abr. 307. So in trespass or other action, if it be found for the plaintiff

T* °^' 4fi H "^b ^' ^^^^ prim, and after, before ^the day in Bank, the plaintiff

162. Yelv. 125*. release to the defendant, and after judgment be given for the

[Bro. Contin. plaintiff, the defendant shall have an audita querela, upon this

p. 27. Infruy matter, because he could not plead the release at the day in

tit. Pleas and Ronk
Pleadings (P).

See the case of Lovell v. Eastaff, 3 Term R. 554. where the bankruptcy of the plaintiff, between
the trial and the day in bank, was pleaded as a pica puis darrein continuance^ But if it had
been in the case of the king, the defendant at the day in bank might have pleaded it, because
no audita querela lies against the king. Noy, 26. If there be judgment against the defendant
for debt and damages, and before execution the money is paid to the plaintiff", who thereupon
releases the defendant, and afterwards takes him in execution within the year, yet he shall not
have an action for this vexation, but must bring an audita querela. 4 Mod. \4.\
f Sed qu. Would not a special action on the case lie ?

Roll. Abr. 307. If a conusee of a statute gives a deed of defeasance to the co-

F.N. B. 105. nusor, and afterwards sues execution, contrary to the form of
the defeasance, the conusor may have an audita querela, because
the defeasance precludes the execution; if the terms or condition
0 of it be performed by the conusor; and the conusor may have

an audita querela, though the condition be not performed accord-
ing to the defeasance, if execution was sued before the condition
broken, because the conusee extended before his time ; and
therefore the execution, being unjustly sued, must consequently
be an injury to the conusor.

Moor,pl.i097. In audita querela the case was this : the conusee gave a de-
feasance, that if he sued execution of the lands the conusor had
in Kcfit, the statute should be void ; the conusee, contrary to his
defeasance, extended the land in that county; and it was ad-
judged this writ well lay to avoid the execution and vacate the
statute ; for the defeasance was no way repugnant to the statute
because the conusee might still extend the lands of the conusor
in any other county, and take his body and goods.

F.N. B. 104. If ^.enters into a statute to B., and pays the money at the

dav

(B) In wJuit Cases an Audita Querela 'nill lie. 42-7

day assigned, upon which the statute is cancelled, and after B.
forges a new statute in the name of A., in this case A. may re-
lieve himself by audita querela, for the forged statute having all
the essentials of a true one, the court was obliged to look on it
as such till the contrary appeared, which the conusor could not
set forth before execution, having no day to appear judicially in
court, and therefore is put to this writ to avoid the execution
founded on the injustice of the pretended conusee.

If the conusee of a statute, upon agreement with the conuzor. Roll. Abr. 513.
delivers up the statute in lieu of an acquittance, and after sues
execution, and the conusor prays a re-extent, because that the
land was extended too low, and has it granted him, he shall never
avoid the extent by audita querela, because by his praying the
re-extent, he admits the statute good and executory.

If upon an elegit the sheriff takes an inquisition, and there are Roll. Abr. 305.
several lands found subject to the extent, and several values 12 Mod. 365.
found, and the sheriff returns, that he has delivered some of the
lands in particular for the moiety, where it appears according to
the values found, that an equal moiety is not delivered to the
party who recovered, but more than a moiety ; yet this is not
void, nor is it a disseisin by the entry, but only voidable by
audita querela.

If a man in execution upon a judgment for debt or damages, q-c^^'iV'
be delivered out of execution by the sheriff or gaoler, who hath tiff consents
him in execution, with the assent of him at whose suit he is that one dc-
in execution, and after, by colour of this judgment, he takes fendant only
him again and puts him in prison, an audita querela lies upon ^^^.^j outVf
this matter, and thereupon he shall be delivered. execution.

Price V. Goodrick, Stile, 387. So if one of the bail be delivered out of execution, he shall
not take the other. 3 Leon. 260. Stile, 117. [It must be observed that the only point
determined in the case of Price v. Goodrick was, that where the plaintiff consents to the dis-
charge of one defendant in execution, the court will not relieve the other upon motion, but
put him to his audita querela. Whether entitled to relief or not upon the audita querela, was
left open by that case. So considered by the Court of Common Pleas, who acted accordingly
iu a like case of Williams v. Jaques and Griffin, Mich. 28 G. 3.]

But if A. be in execution at the suit of B., and after A. escape Vidf tit. Exe-

with the consent of the sheriff, and after A. return to the prison, n"^!?"*!^" ~^^

,,,.„., .... , . , i : Roll. Abr. 307.

and the sheriii keep him in prison upon the said execution, A. HqIj. 60. Cro.

shall not be discharged by audita qu£rela, for B. has it still in his Eliz. 555.

election to have him in execution at his suit, and shall not be Moor, 57.

compelled to take his remedy against the sheriff, who petjiaps ^ eon. lib.

may be worth nothing, for this voluntary escape.

If the principal be taken in execution upon a judgment, and Vide head of

after a scire facias returned according to the course of the court, Haiiin Civil

judgment be given against the bail, and thereupon he be taken 1^^"^^" tqo

in execution, and after the principal be delivered upon an audita („% if thcprin-

querela, because the recoverer had acknowledged satisfaction, ^-c. cipal is taken

in this case, though the recognizance was forfeited by the bail, '" execution,

by not bringing in the principal at the time appointed by law, ^^J^^.jj •. "n^J;.

yet in as much as the judgment and execution against the bail charge of

depends upon the judgment against the principal, and he wns but themselves,

a security

4^8 AUDITA QUERELA.

and if by ac- a security for the payment of the money, of which, the recoveror

cident they jg satisfied, the bail shall be discharpjed. (a)

omit to plead ' .

it, and execution issues against them, I conceive, on motion, the court would set the

execution askle, the plaintiff" being satisfied by having the body of the principal in execution.

1 Bos. & Pull. II It has been said by Ej/rc C.J. that the court will inteqwse
■'^^* in a summary way in all cases where the party would be entitled

to relief on an audita querela ; but the point must be clear, or
they will not assist hiin.
Hewesv.Mott, Thus where the plaintiflfe had entered into a bail-bond for the

2 Marsh R. defendant, and on the bond being forfeited had paid the money,
feiidant'bein*^ ^^^ ^^^^ defendant became bankrupt, and the plaintiffs sued him,
afterwards ° and obtained judgment before he got his certificate, the bail for
rendered in the defendant in that action applied to the court for an exone-
discharge of ^etur, on the ground that the plaintiff's were sureties within the
tion was^made meaning of the 4-9 G. 3. c. 121. § 8. and might have proved under
to discharge the commission against the defendant ; but the court refused to
him under the decide the question on a summary application, and left them to
49G.5.C.121,; ^jj audita oicereh.W

but the court * "

held that the plaintiiFs being only sureties for his appearance, the case was not within the
statute, G Taunt. 530. But bail are now expressly named in the clause as to sureties in the
New Banki-upt Act, G G. 4. c. 16. § 52.

5 Co. 86. ^ If A. and B. are bound in an. obligation jointly and severally,

Bloomfie d s ^j^j judgment given against each on several actions brought, and

508. S. C. * ^^^^^ taken in execution, and after A. escapes, yet B. shall not

Qu. If there be be delivered upon an audita querela; for though the obligee may

a diversity have an action against the sheriff for the escape, yet till he is

1 ^'^fi- actually satisfied the other shall not have an audita qua-ela, for

plamtiff re- i "^ i i -rp- i i •

covers against pernaps the shenii is worth nothing.

the sheriff in debt, and where in case. Vide Mod. 170. 12 Mod. 105. 598. Danv. Abr. 635.*
* I should conceive there is not any diversity, but that plaintiff being satUJicd by the sheriff'
(and not till then) the court would discharge B. out of custody, on motion.
Roll. Abr; 304. If A. leases Black-acre for years to 2?., and then acknowledges
477' S^C^bi " statute to C, and afterwards another to Z)., and then C. takes
tween Har- ^ lease of the reversion, and the rent from A.^ by which he has
rington and suspended the execution of the statute during the term, and
Garraway. consequently laid the land open to the extent of Z>,- the second
conusee, who sues execution ; if therefore C. should extend the
reversion and rent during his own lease, B. the lessee is not
obliged to pay him the rent, but may avoid the extent by plea
without audita querela, because C. hath suspended the execution
of his statute, the first in date, by the acceptance of the lease
from the conusor.
Cro. Eliz. 233. ^^ ^ Statute is erroneously acknowledged, as before one that has
.319.810. no authority; or if a statute-merchant hath but one seal, an

Leon. 229. audita querela lies (a), and not a writ of error, for this is no re-
Owen, 142. cord ; but if a statute is well acknowledged, and the execution
pi. 27'. (a) That erroneous, a writ of error hes.

it lies where a nian ought not to be charged, and yet without any default in himself hath no.
other way of avoiding it. Kelw. 25. That it must be founded upon a suggestion not con-
trary to, but admitting the verdict. Sav. 69, 70. Where a judgment in a copyhold court
rcverseil upon petition to the lord, and the party restored to his damages by aiidiia querela.
Hob. 54. Where after judgnjcnt the tresj^ass was distharged by an act of indemnity. 2 Mod.

37'. Fitzgib.

(B) In "what Cases an Audita Quetxla will lie. 429

37. Fitzgib. 83. 130. Raym. 89. Keb. 634. Where the party must bring a scire facias^ and
cannot be relieved by audita querela, vide title Scire Facias. And where a writ of error, vide
title JS'rror, and Car'th. 282. 4 Mod. 514. Ld. Raym. 27. Salk. 262. pi. 3. And where the
party may be relieved on motion. Salk. 93. pi. 4. [Where a feme sole married between in-
terlocutory judgment and the final judgment, and after the final judgment, the husband and
wife brought a scire facias thereupon for the defendant to shew cause quarc execjilionem non,
S^c. the Court of Exchequer would not set aside the judgment upon motion, but put the

defendant to his audita querela. Lord Sutherland & Ux. v. -, Bunb. 282. So where a

fevie married after the interlocutory judgment, and before executing the writ of enquiry, the
court refused to interpose upon motion, and left the defendant to his audita querela. Cbubbs
V. Uillington, Bunb. 283. The court will not relieve upon motion if the law is doubtful,
though the facts are admitted, but will oblige the party to resort to an audita querela. Lord
Porchester v. Petrie, K.B. Tr. 23G.3. Williams v. Jaques and GrifRn, C.P. M.28G.5.]
IIHewes v. Mott, 2 Marsh R. 37.||

If a statute be delivered to B. to be kept in an indifferent F. N. B. 104.

hand, upon certain conditions between tlie conusor and conusee ; Ro"- Abr. 508.

if J?., before the conditions performed, deliver it to the conuzee, (a)Or per-

and he sue execution, the conusor at his election may either haps a special

have an audita querela upon this matter, or a writ of disceit action upon

against B. {a) 'he case.

If the conusor is taken in execution upon a statute, and the Cro.Jac.2i8.

conusee covenants to discharge him from the statute, the conusor So upon a

shall not thereupon have an audita querela ,- but must take his Pj'oni'se to dis-

remedy by action oi covenant. action upon

the case only lies. Bulstr. 152.

If a man makes a feoffment upon condition to re-infeoff him, Roll. Abr. 310.
and after the feoffee, to the intent to deceive him, falsely and by
covin between him and B. acknowledges a recognizance to i?.,
and after re-infeoffs him, the feofiee may have an audita querela
upon this matter ; for this is grounded upon the matter of re-
cord, as well as upon the matter of disceit, which is matter
in jiais.

If a man acknowledges a statute, which is usuriously entered Roll. Abr. 310.

into, and the conusee sues execution, the conusor shall have an " oudUa

,., , , . ' querela lies

audita querela upon this matter. ypo„ ^^ su<"»cs-

tion that a statute was made by rfwrfM of imprisonment. Roll. Abr. 510. Owen, 142. Vidian
Ent. 107. So upon a suggestion that it is forged. F. N. B. 104.

If A. hath lands in several counties, and enters into a recog- 2 Andr. 1 70.
nizance to /i., and after acknowledges a statute to C, upon which ^^ ^^' ^^'^'>
C. extends the lands in one county, and after B. sues execution
upon the recognizance, and hath the moiety of the same lands
delivered to him, but sued no execution of the moiety of the
lands in the other county ; A. hath no reason to complain, be-
cause B. hath taken in execution only a moiety of his lands, but
C may have an audita querela against B., because it is preju-
dicial to him.

If the conusor infeoffs several men of several parts of the land, i Roll. Abr.

and after the conusee sues execution of the statute against one, ^\}\, ^^ ,

wnGtiicr tiicrc*
he shall have an audita querela [b) upon this matter. ^p^^ ^^^ ^^^^

cution shall be avoided, or the party only have contribution, ©irfe 5 Co. 1 4. b. 2 Inst. 596.
Mo. 537. Dyer, 351. Bulstr. 15. 17. But now vide 16 & 17. Car. 2. c. 5. made perpetual
by 22 & 23 Car. 2. c. 2. by which no extent upon any statute, judgment, or recognisance, shall
be avoided or delayed, because part of the lands extendable are omitted, saving to the party,
whose lands arc extended, his remedy for contribution. But note; no statutes, unless con-
ditioned

430 AUDITA QUERELA.

ditioned for payment of money only, nor extents, unless within twenty years after judgment,
&c. had, are within this act.*

* Nor is extent or contribution given by the act, against any heir within age.

8 Co. 141. I( A. brings an audita querela against J5, and declares, that

Dr. ^'^'■y'* whereas B. had recovered against A. 200/. debt, <^c., and there-
iTf'sKeb * "P^''^ the said A. was outlawed, and upon a capias utlagatum
29i.Rob. Ent. taken, and in execution at the suit of the said 5., and after
157. 12 Mod. from the said execution was delivered and suffered to go at
105. 240. Ld. large, Sfc, and yet B. hath taken out execution upon the said
Venr34 s'alk judgment, and endeavours, Sfc, the defendant may plead and
85. pi. 4. 264. shew, how that after the said enlargement, and before the pur-
pl. 6. 2 Stra. chase of the audita querela, the outlawry was set aside and made

1075. [After void, and so conclude quod non kabetur tale recordum.
two nihils re-
turned the court will relieve upon motion, but not after the sdre facias hath been served.
But they will not do so in the former case if the fact on which the motion is grounded be
controverted. 2 Stra. 1198. Mitford v. Cordwell.]

Cro. Jac.537. Ifyf. hath judgment against B. for costs and damages, and
Roll. Rep. 11. releases to B. all executions, and after B. brings a writ of ^ror,
' *'" * and thereupon the judgment is affirmed, and further costs given

for the delay of execution, and A. takes B. in execution for the
whole, upon an audita quei-ela, B. shall be discharged quoad the
damages and first costs, but not quoad the second costs.
2 Sand. 148. If -^-5 ^s administrator, recovers damages in trover against B.,

Turner and and after his administration is repealed and granted to another,
^^^^\ K^^°''' upon a surmise that A. intends and endeavours to sue execution,
Lutw 343 For '^* '"^y hosQ. an audita querela ; for by the repeal of the ad-
this vide ministration, the power of A. is absolutely determined.

Brownl. 29. 91. Yelv. 125. Noy, 15. Stile, 417. Dyer, 203. Cro. Jac. 394. 6 Mod. 92.
Fitzgib. 202. 257, 258. 10 Mod. 21, 22. 389. Comyns, 150. pi. 102. 2 Will. R. 576. pi. 188.
5 Will. R. 88, 89.; and vide tit. Executors and Administrators, and 17 Car. 2. c.8. revived and
made perpetual by 1 Jac. 2. c. 17. § 5. whereby the administrator de bonis non is enabled to
take out execution upon a judgment obtained by the executor or former administrator ; and
note this audita querela was brought only against the first administrator, and does not dis-
charge the judgment, but the execution at his suit only. Vide Co. Ent. 91. a. An executor
durante minori estate obtains judgment, and the infant comes of age, &c. Qu. If an audita
querela lies ? Vide 3 Leon. 278. Godb. 104.

Lord Porches- ||In 23 G. 3. Lord Porchester brought an audita querela
terv. Petrie, against Petrie, setting forth the declaration in an action by
b wh" th^* P^i'f'i^ against Lord Porchestei; for penalties under the bribery
proceedings ^^t, 2 G. 2. c. 24. § 8., at the Cricklade election, and averring
are fully stated, that the cause was tried on 28 July, 1781, and a verdict found
for Petrie for 2000/., and judgment signed in Michaelmas term
following; the audita querela then alleged that Lord Poichesta;
after the commission of his own offence, and within twelve
months after the election, had discovered to one Richards an
offence of bribery committed by one Minton, and then set forth
the proceedings in a suit by Richards against Hinton for penal-
ties, the verdict for Richards, and judgment also of Michaelmas
term 1781 ; and the audita querela then alleged, that though the
defendant, by reason of the discovery, ought to be indemnified
from the penalties and costs recovered by Petrie, yet Petrie
threatened execution; Lord Porchester therefore prayed a su'

j)erscdeas

AUTHORITY.

431

persedeas and process against Petrie. Petrie appeared, and C«) The pri-

pleaded to the declaration, that one Hopkins had committed an P"*-^ ^^ the

offence of bribery at the election, and that before Lord Por- J"f8'"^"'

T . T TT- T 1 rr 7 • » rt> -^ aoe% not seem

Chester s discovery Hinton discovered Jriopkins s oitence to P^- material to the

trie, who commenced proceedings thereupon. The plea then decision, since
stated the proceedings in the action by Petrie ajjainst HopJdns. f^though the
which was also tried on 28 July, 1781, and a verdict for Petrie, agatnst Hinton
and judgment in Michaelmas term ; and Petrie averred, that the might be prior
judgment against Hopkins was given before the judgment to the judg-
against Hinton at suit of Richards, whereby Hinton was in- '"^"* "^l ^^'""
demnified ; and to obtain such indemnity, sued his audita querela Hopkins still
against Richards, which was then depending. Lord Porchester Hinton would
replied, that the judgment against Hinton at suit of Richards, seem clearly
was given before the judgment against Hopkins, on which fact entitled to the
the rejoinder took issue; and to the rejoinder Lord Porchester under the sta-
demurred. The court held, that the averment of priority of tute on his
one judgment in time over the other, was bad, when it was audita querela
admitted that both were on the same day («); and that the con- ^^" "js judg-
viction, in order to indemnify under the statute, must be a legal Hopkins was
conviction that might be followed up by punishment; and that obtained. See
Hinton appearing to be indemnified by his discovery, Lord 2 G. 2. c. 24.
Porchester' s conviction of him was not sufficient to indemnify §8- As to cases
Lord P., and the judgment was for the defendant. recognises the

fraction of a day. See 2 Barn. & Aid. 586. 1 Bro. & Ding. 370. 3 B. Moo. 740. 5 Term R.255.
5 Wils. 274.; and in 5 Burr. 1434. Lord Mansfield says the law admits the fraction of a day in
cases where it is necessarj' to distinguish.

An audita querela is of common right, and ex dehito justitice, Nathan v.

and need not be moved for: but the supersedeas upon it must be y' ^*' ^I!?"".**
J P i 1 \. 558. 1 Marsh,

moved tor. 226.

There can be no motion in arrest of judgment in an audita 2 Will. Saund.
quey-ela, since an arrest of judgment would be nugatory, the i48f.note(c).
plaintiff having already obtained his supersedeas of the execution
in the former suit; and the arrest of judgment would not set
aside that supersedeas. ||

AUTHORITY.

(A) Where an Authority shall be said to be given ;

and herein of the Construction of the Words
that create it.

(B) Who are capable of executing an Authority.

(D) Where an Authority cannot be transferred.

(E) When

43^ AUTHORITY.

(E) When it shall be said to be determined and re-
voked.

(A) Where an Authority shall be said to be given;
and therein of the Construction of the Words that
create it.

11 H. 4.71. npHAT power of acting which one man has, being transferred
sRolI.Abr. 8. •*• to another, is called an authority, and this the law allows

^^'M^^^\-. of: for, as a contract is no more than the consent of a man's
Vtde infra, tit. . i ' ,i • •<• i , v

Fcofment mind to a thmg, it sucli consent or concurrence appears, it

(E), tit. Leaxes would be very unreasonable to oblige him to be yiresent at the

and Terms/or execution of every contract, since it may be as well performed.

Years. ^y ^^^^y other person delegated for that purpose. -.ob

Co. Lit. 48. b. But such delegation or authority must be by deed, that it may

2 Roll. Abr. 8. appear that the attorney or substitute had a commission or power

. ^.v Letter ^ to represent the party ; also that it may appear that the authority

(C). ' was well pursued.

Brownl. 94. If -^o hy letter of attorney, constitutes and appoints, and in

his stead and place puts B. to surrender a certain copyhold, this

authority is sufficient, and as full as if said for him and in his

name, Sfc.

Roll. Abr. 328. If a man signs and seals a lease o^ ejectment indented, but does

Emery and j^Qt deliver it, and at the same time seals and delivers a letter of

' attorney, in which he recites, — 'vohereas hy indenture of lease,

bearing such a date, &c, hath demised to B. such land habendum ;

no'iso these presents ivitness, that he malces J. S. his laxiyful attoiiicy

to deliver the said indenture upon the land as his deed; though

according to the proper signification of the words, the lease

ought to be taken to be delivered by him, and so this letter of

attorney void, to deliver it again, for this cannot be an indenture

if it was not delivered; yet all parts of the letter of attorney

being laid together, and the intent of the parties, and proof

being made that the lease was not delivered, but only signed and

sealed, it appears that this was only an improper expression of

his intent, by calling it an indenture and a demise ; for if he had

intended that this was an indenture sealed and delivered, this

letter of attorney to deliver it upon the land need not have been

made.

Roll. Rep. 390. If the authority, in a letter of attorney, be adpetend., recipiend.

Palm. 394. ^^ recuperand. a certain debt, it is sufficient to arrest, Sec, because

Goub.359. -'^ . 1 , ' 3 ^ '

necessary in order to recover.
Skin. 413. Where the mayor and commonalty of London had constituted

h^' V^'/^"'*^^- ^' ^' their bailiff to receive their rents, and. to make demand of
dence in "/eel- ^hem, and to make entry, such general authority is not sufficient
ment at Guild- to authorize a bailiff to take advantage and demand a rent accruec
hall. due after the authority given ; for it is a new right attached, anc

there ought to be a special authority for this purpose.
Hoggv.Snaith, ||A power of attorney, to recover and receive all salary aila

money

money due to the party giving it, and to compound, discharge, ^ Taunt. R,

and give releases, and appoint sub-attorneys, does not authorize '^'^Z; ^^"'"''^y

the attorney to indorse and negotiate a bill received in payment Coinpan" '**

of such salary, ^c. || 5 Barn. & A.

204.

If a steward makes a deputy hue vice to take a surrender of a Cro. Eliz.48.
copyhold, et ulterms ad faciend. quantum in se est ; by virtue of See 12 Mod.
these last words the deputy may take a conditional surrender. '*®^*

An authority may be delegated by deed indented, though the ? l^ol'; Abr,
attorney be not party to the deed, because the attorney takes ^ ^" ^"^P-
nothmg by the deed, but has only a naked authority delegated to ,2\i. '

him ; and therefore, since a man may take an estate in remainder,
though he is no party to the deed, a fortiori one, not party to
the deed, may receive a naked authority or power by it.

(B) Who are capable of executing an Authority.

•T^HERE are few if any persons excluded from exercising a Co. Lit. 52. a.

naked authority to which they are delegated ; and therefore ?p'^^".^ J,^^*

monks, infants, feme coverts, persons attainted, outlawed, ex- Und fe'me"o-

communicated, villains, aliens, S^c, may be attorneys ; for the verts cannot

execution of a naked authority can be attended with no manner be attorneys to

of prejudice to the persons under such incapacities or disabilities, prosecute

or to any other person, who by law may claim any interest of !!" !.'..?f^.,°,.,
iT •'i I, * I. i-ii '' '' execute an au-

sucn disabled persons alter their death. thority

coupled with interest. Co. Lit. 128. a. 52. a. note (2).||
A feme covert may be an attorney to deliver seisin to her hus- p°;,^'"'^'"' "*
band; and so may he in remainder be an attorney to make livery 199
to the tenant for life.

So, \i cestui que use had devised that his wife should sell his Co.Litt, 112.
land, she might sell it to a second husband ; for she did it w ^''^^ Latcli. 9,
auter droit, and the vendee was in by the devisor. Jones i57*.S,C.

Noy, 80. S.C. Co.Lit.(lSth edit.) 112. b. n. 6. iP.Wms. 149. Salk.239.

XT ERE it is necessary to take notice of a difference in the old Co. Lit. 112,
books, between a naked authority and an authority coupled / I'^g^j |j 1,3,
with an interest (a) ; for if a man devise that his executors shall ijgg,^ holden in
sell his lands, this gives but a naked authority, and the lands, equity, that if
till the sale is made, descend to the heir at law; and in this case a man devises
all must join in the sale ; and if one die, it being a bare authority, g,JJ)[f j^g ^^{^
cannot survive to the rest, (b) for the pay-

ment of his debts and legacies, though one of the parties who was empowered die, the survivor
and heir at law must join in a sale. Hard. 204. So if lands are devised to be sold, and no
person is named for that purpose, the heir must do it. [Locton v. Locton, 2 Freeni. 156". and
I Chan.Ca. 179. Garfoot v. Garfoot, 1 Chan. Ca. 35. Pitt v. Pelham, 2 Frcem. 154. 1 Chan.
R. 283., and 1 Chan. Ca, 176. T.Jon. 25. 1 Lev. .504. Yates v. Compton, 2P. Wms. 308.
(/)) One devises the residue of his personal estate to J. S., provided she marries with the ton-
sent of his two executors: upon the death of one tiic condition is gone, for this is a bare
authority not coupled with an interest, and therefore cannot survive without express wonls for
that purpose. Peyton v. Bury, 2 P. Wins. 626.]

Vol. I. F f But

434

AUTHORITY.

But if a man by will give land to executors to be sold, and
one of them die, the survivors may sell; for the trust being

Co.Lit. ii3.b.
isi.b. S. P.

tion between coupled with an interest, shall survive together with it.
a devise of lands to be sold hy executors, and a devise that executors shall sell lands, seems
rather to consist in the arrangement of the words, than in any thin^ substantial ; and the learned
editor of the 1st Inst, hath a very full note upon this passage of Lord Coke, in which he con
tends that the power to sell being given to the executors by reason of an ojfice or interest, which
go to the survivor, may well survive with them in either case.] Vide Cro. Eliz. 856. HAnd see
fcjugden on Powers, (4th edit.) 106. Co. Lit. 115. a. n. (2).ll

Co. Lit. 1 12. b. Also if lands be devised to A. for life, and that after his decease
(a) So if j^is lands shall be sold by his executors, and he makes three oi

four executors, and during the life of A. one of the executors
dies, and then A. dies, the surviving executors may sell, because

there had been
but one exe-
cutor living.

Cro. Car. 382. the land could not be sold before, and the plural number o
executors remains, (a)

But it is said, that if a will had given such power to certaii
persons, naming them by their names, as to J. S., J. N.y J. D.
and one of them died, the survivors could not sell ; for the wordi
of the will in that case could not be satisfied, {b)

Jones, .552.
Vide And. 145
Moor, 61.

Co. Lit. 113.
(b) Sed qu.
and vide Cro.
Car. 582.co?j^
3 Leon. 106.

C. 156. Moor, 147. c. 291.

2 And. 59.
Townsend and
Wales. Owen,
155. Moor,
341. Cro. Eliz.
524. S.C,

Co. Lit.
181.

115.

Co. Lit. lis.
Cc) But vide
head of Trusty
that they are
now consi-
dered only as
trustees, and
shall have no

If A.y being seised in fee of a reversion of twenty acres, ex-
pectant upon an estate for life, and of other twenty acres in
possession, for the performance of his own and his father's will,
devises all his lands and tenements to his executors, and wills
that they should take the profits thereof for ten years, and that
after the expiration thereof the same should be sold by his
executors, or by one of them, and dies, and after the tenant for
life dies, and then one of the executors dies, the other two may
sell the twenty acres ; for as they may perform his will, so they
may sell in order thereto.

At common law, if one of the executors who was empowered
to sell lands refused, the others could not sell; but now, by
21 H. 8. c. 4., notwithstanding part of those to whom power is
devised refuse, the rest may sell ; and so may such of those to
whom land is devised to be sold, as are willing, though the other
refuse, by a favourable construction of that statute ; but they can-
not, in either case, sell it to the executor that refused, for he is
privy to the will, and executor still.

My Lord Coke observes, that it is safest, in giving such powti
by devise, to limit it to the survivors or survivoi", or those thai
prove the will, S^c. ; and when an estate is devised to executor;
to be sold, it is advisable to appoint that the profits taken b}
them before the sale shall be assets; for otherwise they shal
not. (c)

more than their costs and charges.

Townsend v.
Wilson,
1 Barn. & A,
608.

II A power of sale was reserved by indentures of lease ani
release to three trustees and their heirs; and on one of tli<
trustees dying, the other two executed the power. It was held
that the power was not well executed ; although the deed e>;
pressly provided, that the money arising by the sale should li

intrustet

43^

intrusted to the trustees for the time being, and provided for
the appointment of new trustees in case of death, ^x.

Where three different classes of trustees were appointed by Sharp v.
will for three different purposes : first, i?. Sharp and R. L. Rice Sharp, 2 Barn,
as to 1000/.; second, Mary Sharp, R. Sharp, and G. A. Davis as ^j^sg^^sj .
to the rest of the personal estate ; and third, R. Sharp and G. A. jen on l*ow.
Davis as to the real estate: and the will then contained a power, I68. (4tU
that in case either of the said trustees, R. S. and R. L. i?., so ^^^^•)
far as applied to the trusts reposed in them respectively, or the
said M. S., R. S., and G. A. D., so far as applied to the trusts in
them reposed respectively, should die, or desire to be discharged
from, or neglect or refuse, or become incapable to act in the
trusts thereby in them reposed, before such trusts should be
fully performed or determined, in such case, it should be lawful
for new trustees to be appointed; it was held, that this power , ^ir;

was only given to the two first-named classes, and not to the
class last named, the trustees of the real estate ; and also that it
was not well executed by the two trustees, both of whom had
declined to act in the trusts. 1|

If a man devises lands to his executors to sell, and dies, the Co. Lit. lis.
executors may sell part of the land at one time, and part at
another time, as they can find purchasers.

A., by indenture, demised to B. hahend. a die datus (which was Cro.Jac. 153.
the loth oi June), indenturcE prcedict. for his life, with a letter of Cro. Eliz. 873.
attorney to make livery ; the attorney makes livery the 23d of * * '
July following; and the livery was holden to be void, because
the estate ;for life being by the indenture to commence the 10th
o^ June, the attorney had no authority to change the commence-
ment of the estate ; and therefore, having not pursued his au-»
thority, by not giving livery, to let the freehold commence
according to the deed, what he did afterwards was without any
authority, and consequently void ; but in this case, if the deed
had not been delivered till after the day of the date, and the
attorney had given livery at the time of the delivery of the deed>
this had been a good delivery, because the deed of feoffment
was to govern the livery; but the deed itself had no effect till
the delivery ; and therefore the attorney making the livery at the
time the deed of feoffment began to operate, which was to govern
it, seems to have well enough executed his authority.

If a letter of attorney be to make livery upon condition, so as j j j^ ^ ^ 2.
to make a conditional feoffment, and the attorney deliver seisin 2Roll.Abr. 9.
absolutely, the livery is not good, because the attorney had no And hence the
authority to create an absolute fee-simple ; and therefore, such «"orncv, in
absolute feoffment shall not bind the feoffor, because he gave no jg called a *
such authority. disseisor. Co.

Lit. 258. Perk. § 188.

But if the letter of attorney had been to make livery abso- 26 Ass. 39.
lutely, and the attorney had made it upon condition, this seems c^Lit^2^58^'
a good execution of his power, and the feoffment good, because g|,ep Touch-
when the attorney has once delivered seisin, he has fully executed stone, 2 is.
his power; and the condition annexed to it, being without au- Perk. §188.

F f 2 thority,

436 AUTHORITY.

thoi-ity, is void ; and therefore shall not destroy the operation ol*

the livery. I

Perk. $189. If a warrant of attorney be given to make livery to one, and

But if the at- the attorney make livery to two ; or if the attorney had authority

,/i'ir^/ ^^^^- ° to make liverv of Black-acre, and he make livery of Black- acre
deliver seisin , , ••111 1 • 1 i

to two, and he ^"" n nite-acre^ though the attorney has m these cases done

had made more, yet there is no reason that should vitiate what he has
livery only to done pursuant to iiis pow^er, since what he did beyond it is a
belivow!"" perfect nullity and void.

because he had no authority to deliver the whole possession to one excla'iVe of the other;
and therefore it is void for the whole. Perk. § 189. Vide infra. Ijln Ailam; v. Adams, Cowp.
651. where a power was given to a[)point to children, and the donee appointed to children,
and also to grandchildren, the appointment to children was held good, and that to grand-
children void ; the latter limitation, being distinct and independent, might be rejected. But
where the power was to lease for twenty-one years or three lives, and a lease was granted for
ninety-nine years, determinable on lives, the lease was held bad even for the twenty-one years.
Roe v. Prideaux, 10 East, 158. Here the excess was interwoven with the demise under the
power ; and see 2 Ves. 640. 2 East, 376. 13 Ves.jun. 576. However in equity if a lease is
made for a number of years exceeding the power, it is held good to the extent of the power.
Campbell v. Leach, Ambl.740.; and see Sugden on Pow. (4th edit.) 552.||

C^lAt.49.h. If a letter of attorney be given to two jointly to take livery,
2Koll.Abr.8. jjj^jj ^Y\e feoffor make livery to one in the absence of the other,
in the name of both, this is void ; because they being appointed
jointly to receive livery, are to be considered but as one.
Co Lit. 49. But if a feoiFment be made to A. and i?., and the feoffor give

2Roll,Abr. 8, a letter of attorney to deliver seisin, and J. S. give livery to A.
in the absence of B., in the name of both, this is a good livery ;
for though the entire possession be delivered to one only, yet
they being joint-tenants by the deed of feoffment, such livery to
one makes no alteration or change in the possession ; because, if
the livery had been made to both, each had been placed in the
whole possession ; besides that, every man being presumed to
accept a gift for his advantage, A. is looked upon as the attorney
of jB. to receive the possession for him; and therefore the livery
of ^. enures to the benefit of B. till he disagrees to it.
Dyer, 62. g^- jf j^ letter of attorney be made to three conjunctim et divi-

Roll. Abr. 329. • 1 . , 1 i- .1 • • . 11

Co. Lit 181 '^'' ^ ^^^ oJ^iy make livery, this is not good, because not pui-

Roll.R. 299. suant to their authority; for the delegation was to them all three,
Yelv. 26. or to each of them separately ; yet if the third was present at the

time of the livery made by two, though he did not actually join
with them in the act of livery, the livery is good ; because when
they all three are upon the land for that purpose, and two make ,
livery in the presence of the third, there is his concurrence to the ■
act, though he did not join in it actually, since he did not dissent 1
from it. j

Guthrie v. || But where a power of attorney was given to fifteen persons ;

5 B^*^°& A J°'"^'y ^^^ severally, to execute such policies of insurance in the j
g28. name of a party, as they or any of them should jointly or sepa-

rately think proper ; it was held, that an execution of the power
by four of the attorneys was sufficient, according to the intention
appearing on the instrument. |1
Co. Lit. 52. If A. be disseised of Black-acre and JVhite'Qcref and give;

letter

C) Where an Auihoril^ is well pursued and executed. 437

letter of attorney to enter into both, and make livery, if the 2R0II. Abr. 9.
attorney enter into one acre only, and make livery secundum for-
mam chaHa;, this is not good, because the attorney has not pur-
sued his authority; for the estate of the disseisor cannot be
defeated without an entry into both acres ; and till the estate be
defeated the attorney cannot execute his power in the manner it
was delegated ; and therefore what he did in this case was void.

If a letter of attorney be given to A. to make livery of lands ^o- ^^^- ^2.
already in lease, the attorney may enter upon the lessee in order rker in a.
to make livery; because whilst the lessee continues in possession 340.3. But
the attorney cannot deliver seisin of it; and therefore to execute per Rolle, it is

the power given him by the letter of attorney, it is necessary he ^.'^^ ^^^^l ^^y
uiJi ... .ui lor the feoffor

should have a power to enter upon the lessee. ^^ jj^gg^^ ^^

clause in the letter of attorney for the attorney to enter et omnes alios hide expellend.
sRolI.Abr. 8. That an attorney cannot make livery vithin view, vide Co. Lit, 52. 2 Roll.
Abr. 9.

If the king grants a warrant to four officers of the Exchequer, xi Co. 92.
by which he authorizes them, or any one of them, to pay out of Roll. Abr. 329.
the king's treasure the costs and expenses of any man who shall '!^' " ^ a
be employed in the service of the king ; and two of the four give g28. acc.ll
a warrant for the payment of a certain sum to J. »5., this is a
good warrant, though neither all four nor one only did it.
[But JRolle adds, " dubitatur ; " and Lord Coke saith, that " it
was touched (but not resolved) that they had not pursued their
authority."]

So if a judgment be assigned to the king, in satisfaction of a 5Co. 9i.
debt due to the king, with a proviso, that if the barons of the K,oll.Abr.328.
Exchequer, or any two of them, revoke it, that it shall be void;
and after three of the barons revoke it, (there being four in all,)
this is a good revocation.

But if the words had been, that if the barons, or any two of 5 Co. 91.
them, jointly or severally revoke it, Sfc. there three of them J^o'^Abr.sss.
could not revoke it, for this is neither jointly nor severally, (a) jf ,,„ „(.t done
by three shall not be considered in this case as a proper execution of the power ? ||See
5 Barn. & A. 628.||

But if a sheriff makes a warrant to four or three, on a capias Co. Lit. isi.
jointly or severally, to arrest one, two of them may arrest the ? n"|j ^r* .__
party, for the greater expedition of justice. Poph. 202.

Cro. Eliz. 913. Noy, 47. Yelv. 26. sBulst. 209. Roll. R. 406. Roll. Abr. 329. sVin.Abr.
418. [Where the king directed the deputy and council o^ Ireland to cause a bishop to be
installed, and the deputy was changed, it was holdcn, that the successor and council might do
it. Palm. 27.] But a commission directed to six, four, or two, cannot be executed by three,
because that is a judicial act. Yelv. 26. Noy, 47. 2 Inst. 380.

Where a person is authorized to do a thing, it is most re- y., ^
gular to do it in the name of him who gave the authority. (6) {,. Iledit. 1826.11
Ld.Raym. 1418. Stra. 70.5. Godb. 389. Roll. Abr.33l. Moor, 70. pi. 19J. 818. pi. 110. b.
Salk.96. (i) But if executors have power to sell lands, they may do it in their own names.
Roll. Abr. 331. So if a deputy steward makes an attorney, or appoints an uuder-deputy to
take a surrender of a copyhold estate, and he does it accordingly without reciting his power,
this is good : for where a man does such an act as he cannot do, so as to be ettectual any other
way than by virtue of his authority, that shall be taken to be in execution of his authority.
Salk. 9.5, 96, But where a man has an interest and authority, and docs an act without recit-
ing his authority, it shall be taken to be done by virtue of his interest, balk. 96. For this

F f S vide

438 AUTHORITY.

vide 6Co.l8.fi. Sir Edward Cleer's case. Cro. Eliz. 878. Cro.Jac.5l. Co. Lit. Hi. h.
Jenk. 201. 215. Cro. Car. 335. [Hob. 160. 1 Atk. 559. Hardr. 395. 1 Chan. Ca. 103.

1 Lev. 150.]

White V. IjOne who executes a deed for another should execute it in

Cuyler, ^ ^jjg name of his principah But, provided it is done in the name

Wifks" V Back ^^ ^^^ principal, no particular form of execution is necessary.

2 East, 141.

Ball V. Duns- And where a party executed a deed for himself and his

terville, partner by the authority of the partner and in his presence, the

3 1 s^'-^aaci see court held it well executed although only sealed once. 1|

Harrison v. Jackson, 7 Term R. 207.

Roll. Abr. .350. If the lord gives licence to a copyholder for life to lease the

For authorities copyholder for five years, the copyholder may lease it for three

that are to be yg^j-g . foj. (j^[^ [^ comprehended within the lease, inasmuch as

strictly pur- r i i • i • t . i c

sued see "^ '^^^'^ given hini licence to lease tor more years.

Moor, 43. Godb. 39. 2 Roll. R. 6. Owen, 73. Bulst. 104. 2 Mod. 318. Keilw.43. Lit.R.
141. Cowp. 26. One who hath power to make a lease for ten years, makes a lease for twenty ;
decreed good in Chancery for ten years. Chan. Ca. 23., vide head of Leases and Terms for
Years; ||and see a«<^, p. 436.11

Roll. Abr. 330, So if the lord gives licence to a copyholder for life to lease
."31. Cro. Jac. ^j^g copyhold for five years, if the copyholder tamdiu vixerit, and
Ponh 105. lie leases it for five years generally, without limitation ; this is a
S. C. Cro. good execution, and pursuant to the licence, for the lease is
B:iiz. 461. determinable by liis death, by a limitation in law, and there-

Owen,72.S.C. fQj-g ^s much is implied by law as if he had made an actual
limitation.

(D) Where an Authority cannot be transferred.

9 Co. 77. b. O'^''^ ^^^ ^^^ ^" authority to do an act for another must exe-

Roll. Abr. 330. cute it himself, and cannot transfer it to another ; for this

(«") Qucere, and i^ging a trust and confidence reposed in the party, cannot be

vide ea o assigned to a stranger, whose ability and integrity were not so

Executors p i ^ r i i • c i "^ i ^ J

and Adminis- well thought oi by him tor whom the act was to be done ;

nistrators. therefore an executor having authority to sell, cannot sell by

attorney, {a)

9 Co. 76. So it" lessee for life hath power to make leases, rendering the

i;*^?'l".^^' ^^^' ancient rent, he cannot make them by letter of attorney, (b)
Roll. Abr. 330. ^ J y J

|j(6) SirE. Sngden says, that a donee under a power may execute a deed of appointment by
attorney, for the appointment is his own ; and this is no delegation of the trust and con-
fidence. See Sugden onPow. 178. (4th edit.) He does not cite any authority; and the cases
here in the margin bear out the text as to leases.||

Ingram v. |jSo where a father had A power of appointment to his

2"a iTss • children over a real estate, and he delegated the power to his
and see Ha- ^^^^» Lord Hardwicke said that this must be considered as a
milton V. power of attorney which could be executed only by the husband

Royse, 2 Scho. to whom it was solely confined, and was not in its nature trans-
& Lef. 330. missible or delegatory to a third person.

Attorney-Ge- Again where personal estate was given to such charitable
nerai V. Berry- ^ge as A. should apjjoint, and he directed the money to be

applied

(D) Where an Authority cannot he transferred, 439

applied as B. should appoint, Lord Hardvincke held the dele- man, aVes.
gation void. 643.

So where the testator gave his wife a power to appoint per- Alexander v.
sonalty among their children, and she delegated the power by -A-lexander,
will to others, Sir Thomas Clark determined that the delegation BrisT \^^^*
was void. Warde,

2 Ves. jun. 336

On the same ground a person whose consent is made requisite Hawkins v.
to the due execution of a power, cannot authorize another as his '^^'"P* ^ E^***

*<• . • 4. * -4. 410.

attorney to give consent to it.

Where a power is given to A. to create estates under the Doe v. Caven-
power, and he creates an estate, subject to a power of jointuring '^•sh, 4 Terra
by 2?., this is not a delegation of his power. K.471. n.

And the donee of a power may delegate the power, if there is Palliser v.
an express authority to do so in the deed creating it. ^f'^' Bunb.

Where the power is annexed to an interest m the donee, and How v.
is to be executed by the donee and his assigns, it will pass to Whitfield,
any person coming to the estate by assignment, whether an as- l-g "'' '^^^*
signee in fact, or an assignee in law as an heir or executor : but Coxe v. Day,
it seems that unless originally authorized to be executed by the 13 East, lis.
donee and his assigns, the assignee of the estate cannot exercise it.

Where the trust was to dispose of the property unto such of
the relations and kindred of the testator, in such manner as his Cole v. Wade,
trustees and executors should think proper, and the trustees and ^6 Ves. 27.
executors died, the survivor devising the trust estates to A. and
i?., and making them executors as to the personal part of the
property. Sir William Grant decided that A., and B. could not
execute the power, saying, that wherever a power was of a kind
that indicated a personal confidence, it must prima facie be
understood to be confined to the individual to whom it is given,
and will not, except by express words, pass to others to whom
by legal transmission the same character may hr.ppen to belong.

By the act 1 G. 4. c. 119. § 12. for relief of Insolvent Debtors, j g. 4. c. 119,
all powers of leasing, and all other powers over real and per- § 12.
.sonal estate vested in any insolvent debtor, are thereby vested in
his assignees by virtue of the act, to be executed for the benefit
of all the creditors.

By the act 43 G. 3. c. 75. § 3. all powers of leasing lands, 43 q^ g ^ 75^
tenements, and hereditaments vested in any person found a ^ 3. This act
lunatic shall and may be executed by the committee of his estate, '8 repealed,

under the direction and order of the Lord Chancellor or Lord c'"=cpt as to
y- proceedings

JVeeper. ^ already com-

menced, by 1 W. 4. c. 65., but the provision in the text is recnacted by § 23. of that act.
And by 6 G. 4. c. 16. § 77. all powers vested in any bankrupt, 6 G.4. c.ie.
which he might legally execute for his own benefit (except the § 77. See
right of nomination to a benefice), may be executed by the l^r^'eras to
assignees for the benefit of the creditors. || powers by act

of law, Sugden on Powers, (4th edit.) 180

\^ A. lends B. a horse to ride to Yorl-f B. cannot let his man Mod. 210.
ride him ; for the licence is a matter of pleasure annexed to tnc Bringlo and

F f 4 person

440

AUTHORITY.

Morris. But person of B., and cannot be transferred ; adjudged upon a de-

wUere aTer-**^ murrer, in an action of trespass, for immoderately riding the

lain time is plaintiff's mare ; where the defendant pleaded that the plaintiff

limited for tlie Ucentiam eidem dedit eqidtare ; and that the defendant and his

loan of the servant alternatim had rid upon the said mare.

horse ; tor in *

that case he hath an interest in the horse, and may let his servant ride him. So if B. for money

lets a horse to A. to ride to York. Mod. 210. 2 Ld. Raym. 913. 915, 916.

Howes V. 11^. agreed to give J5., a coach maker, 100/. for a coach, and to

& C 4^^°* P^y ^*^^* '*^^ ^^"^^ ^y ^'^"'^ '^'^^^ ^'^ ^^^' ^^^^ ' ^"*-^ further that B.
should have a claim upon the coach until the debt was duly paid.

The bills were given, but the first was not paid when it became

due. A. died, his administratrix sent the coach to B. to have

the wheels repaired. B detained it on the ground that the bills

had not been paid. It was held, in an action of trover brought

by the administratrix, that the agreement operated as a mere

licence from A. to B. to take the coach if the bills were not paid ;

that it was not transferable, and that the coach having vested in

the administratrix by operation of law, the defendant was not

justified in detaining it.jj

ride 2 Roll
Abr. 9. Co.
Lit. 52, b,
and note 17.
(14th edit.)
Perk. 188. Dy.
92. 177. 270.

14 H.8. 3.
11 H. 7, 19.
Co. Lit. 52.
2 Roll. Abr.
12. llButit
hcems that
livery cannot
he made till
the new mayor
is made. Co.
Litt. 52. b.
note (9).||

Co. Lit. 52. b.
(a) So if the
lessor grants
over his estate,
yet the lessee
may alien.
Cro. Jac, 103.

Co. Lit. 53, b.

(E) When it shall be said to be determined and

revoked.

T^HE authority given by letter of attorney must be executed
during the life of the person that gives it; because the letter
of attorney is to constitute the attorney my representative for
such a purpose, and therefore can continue in force only during
the life of me that am to be represented ; and hence it is, that if
J. S. make a letter of attorney to deliver seisin after my death, it
is void, because he cannot deliver seisin during my life, for that
were plainly without any authority from me ; nor can he do it
after my death, for the former reason.

But if any corporation aggregate, as a mayor and commonalty,
or dean and chapter, make a feoffment and letter of attorney to
deliver seisin, this authority does not determine by the death of
the mayor or dean ; but the attorney may well execute the
power after their death, because the letter of attorney is an
authority from the body aggregate, which subsists after the death
of the mayor or dean, and therefore may be represented by their
attorney : but if the dean or mayor be named by their own
private name, and die before livery, or be removed, livery after
seems not good.

If the lessor by deed licenses his lessee for years or life to
alien, who is restrained by condition not to alien without licence,
and the lessor dies before the lessee aliens (a); yet this is no
countermand of the licence, for the licence exempts the lessee
out of the penalty of the condition, and it was executed on the ,
part of the lessor, as much as could be. I

W the king gives licence to alien in mortmain, and dies, yet it
may be executed after.

BAIL IN CIVIL CAUSES. 441

So if the king licenses J. S. to sell wines, and dies. gU g^ ^ rj„

both these cases an interest passeth with the authority, and therefore it is that it doth not de-
termine l)y the death of the king. But where a bare authority passeth, and no more, it aeemeth
to be otherwise. PI. Com. 457. Hardr. 444. 1 Freem. 85. 115. 137.]

II A warrant to enter up judgment is revoked by the death of i Anst.225.
' the giver : and a warrant of attorney to enter up judgment given r^^f-^ e"^*
by two, is revoked by the death of one, and judgment cannot be i^^w v. Alder-
entered up against the survivor ; for the authority must be strict- son, 7 Taunt,
ly pursued. 453.

But if a warrant is given to enter up judgment at suit of two, „ . ..
and one dies, judgment may be entered up by the survivor. || j^^y 2 Maule

& S. 76.; and see 1 Younge & J. 206. Tidd, 551. (9th ed.)

BAIL IN CIVIL CAUSES.

"DAIL and mainprise, words often used in our law books as 2Hawk. P.C.
synonymous, agree (a) in this, that they save a man from ^^o. (a) But in
• "^ ^ ■ \} ° 1 1,- f 1 1^1- r what they dif-

imprisonment in the common gaol, his iriends undertaking tor jg^ ridcilast

him before certain persons, for that purpose authorized, that he jso, Godb.
shall appear at a certain day, and answer whatever shall be ob- 339. and
iected to him in a legal way. 2 Hawk. P.C.

•^ ° "^ 140. That the

chief difference is, that a man's mainpernors are barely his sureties, and cannot imprison him
themselves to secure his appearance, as his bail may, who are looked upon as his gaolers, to
whose custody he is committed, and therefore may take him up upon a Sunday, and confine
him till the next day, and then render him. 6 Mod. 23\.per cur. 7 Mod. 77. 85. 98. Ld.
Raym. 706. 12 Mod. 275. 348. 606, 607. 667. [So they may justify the breaking and entering
the house, (the outer door being open,) in which the principal resides, (whether he is solely
possessed of such house, or reside in it by the consent of another,) in order to seek for him,
for the purpose of rendering him. Sheers v. Brooks, 2 H. Black. 11. 120] ||Though a soldier
cannot be taken out of his majesty's service, except on a criminal charge, he may be surren-
dered by his bail. 1 Stra. 2. And the same rule holds as to seamen and marines, 7 East, 405.
4 Taunt. 557. And witnesses and parties attending courts may be taken by their bail. 1 Dow,
& Ry. N.P. C. 50. And a bankrupt may be taken by his bail during his examination.
1 Atk. 2.'58. sEast, 145. ; and see tit. Bankrupt, post.\\ Against him that is mainprised <fff
die in diem no bill can be filed; otherwise against him that is bailed. 4 Inst. 180. — Also it
seems that before the 23 H. 6. c. 10. the sheriff was not upon an arrest obliged to take bail,
unless the party sued out a writ of mainprize ; but for this vide 2 Roll. Abr. 113, tit. Main-
prize.

The putting in bail in personal actions seems to be in imitation Vin. 839. Di-
of the civil law, which requires that cautions should be put in gest^ lib. 2. tit.
either by pig?iora or fid ejussores, and the idoneiis Jidejjissor was ex ^'
arbitrio judicis approbatus, vel litigantium conseiisti acceptus ,- for
formerly in these actions, if the defendant did not appear on the
summons, the process was an attachment^ and the sheriff might
attach him either by his goods or by pledges; and if he attached
him by his goods, by his nonappearance his goods were for- I^^^utli, 9, 10.
feited; if by pledges, and the party did not appear, they were
amerced.

Under

44« BAIL IN CIVIL CAUSES.

Under this head I shall consider, !

(A) What Persons are authorized to take Bail ; [(and

from whom and in what Form.H

(B) In what Cases Special or Common Bail is required.

And herein,

1. What the Debt must amount to for lahich there must

be Special Bail,

2. Where the Demand is uncertain, and founds only in

Damages.

[3. IVJiether a Defendant can be holden to Bail t'wicefor
the same Cause of Action."]

4. Whether Bail be required in Actions on Penal Sta-

tutes.

5. Of Persons that are not required to jnU in Special

Bail.

6. Whae Special Bail is required on removing a Cause

out of an inferior Jurisdiction before Judgment.

7. Of putting in Bail on bringing a Writ o/" Error.

8. Common Bail in 's^hat Cases necessary.

And herein,

1. Of the Manner of putting in, excepting to, and jus-

tifying Bail.

2. To "iiohat Time it shall have Relation.

3. Where a different Action is prosecuted from that to

ischich Bail xvas given.

4. What Defect or Irregularity may be amended.

(D) Of the Proceedings against the Bail, and what

they may plead in their Discharge.

[(D 2.) Of the Proceedings on the Bail-Bond.]

(A) What Persons are authorized to take Bail ; Hand
from whom and in what Form.H

2 Sand. 59. "V^HEN the sheriff arrests any one, he is not only authorized,

Vent. 55. 85. ' \^^^ obliged to take bail, otherwise an action on the case

Mod.33. Salk. ,•_ • . -u-^

99 nl 6 against nim.

Ld.Raym.425. ^his the sheriff is obliged to do by the 23 H. 6. c. 9. which

6 Mod. 122." enacts, "that sheriffs, coroners, Sfc. shall let to bail persons by

[This, it is now " them arrested, or in their custody, by force of any writ, bill,

settled, IS a "or warrant, in any personal action, or because of any indict-

cour'se^n«;d " "lent of trespass, upon reasonable sureties (having sufficient

' " within

(A) TVhai Persons are authorized to take Bail,, ^c. 443

" within tlie county) to keep their days in such place, Sfc. as the not be plead-

" writ, S)C. require, (such as are in ward by condemnation, exe- |, S'*"^"^' ''•

" cution, cfl/>/a5 ?<//crga/2/?«, or excommunication, surety of peace, r. 569."| ||Lo.

" or committed by command of the justices ; and vagabonds veil v. Sheriffs

" refusin<T to serve accordingr to the statute of labourers only ex- of London,

"-p'^d.) ;,^E„..,^° =

fendant, to avoid the bond, must plead such facts as shew it void. Sed vide 4 Maule & S.
338. ; and see^joif (D), 2.||

But though the sheriff is obliged to take bail, yet if the plain-
tiff dislike the security, and does not take an assignment of the '
bail-bond, he may have the defendant brought up; for the
sheriff having arrested him (a), must return a ccpi corpus, on ^^n j Vent. 85.
which return it is a breach of duty in him not to bring him Mod. 33. 57.
up, for which the court amerces him as one of their officers. 244.

But if the writ be not returned, and the court make an order Vide tit. She-
that the sheriff shall return his writ in four days, as is usual, "ff-
there the disobedience is to the pronounced order of the court,
and consequently a contempt of the court, for which an attach-
ment lies.

If the sheriff returns cepi on a mesne process, et paratum habeo. Roll. Abr. 807,
he shall be only amerced if he does not bring in the body, sos.Cro.Ellz.
though he shall be attached if he does not return his writ(i); f^ /That'll fs^*
and the reason is, because the sheriff is bound to bail the pai'ty ; usual at this
and therefore if the sheriff is mistaken in his sureties, he is not day to serve
to suffer in his liberty; and the returning his writ is in his own the sheriff with
power ; but it may not be in his power to bring in the body fn'ihe bodyle-
which he was obliged to bail. fore you move

to amerce him. Salk. 99. If the sheriff returns a ccpi corpus and paratum habeo, or

languidus, where the defendant is at large, without any bail taken, he is not aided by the
statute, but an action for a false return lies against him. Noy, 39. Roll. Abr. 807.*

• After the sheriff has returned a cepi corpus, plaintiff may sue out a rule to bring in the
body : The intent of this rule is, to compel the sheriff to put in good bail above, which if not
done in due time, the court, on motion, will grant an attachment against the sheriff, the con-
sequence of which is, generally, payment, by the sheriff, of the debt and costs, who seeks his
remedy over against the oflicer, by whom the defendant was arrested, or his sureties ; or, in
London, against that secondary, or officer who took the bail-bond, if any, or his sureties.
1 Wils. 262. Wolfe v. Collingwood.

And if the plaintiff takes an assignment of the bail-bond, the [W Pot he is
sheriff is not amercable (c) ; for by accepting the bond, the plain- JJo^Q^^'f^^x^y,
tiff has waved the benefit of the amercement, and he may now Dawes, 1 Ld. *
sue it in his own name, though formerly he could only sue in Raym. 722.]
the sheriff's name ; and if the sheriff released the action, his Salk. 99. pi. 6,
remedy was in a court of equity. Gilb*' H 'c^P

21. ||3 Bos. & Pull. 564. Tidd's Practice, 307. U

But now, by 4 Ann, c. 16. §20. for amendment of the law, it 4 Ann. c. I6.
is enacted, " that if any person shall be arrested by any writ, ^^^^',A 1%
" bill, or process, out of any of her majesty's courts of record '

" at Westminster, at the suit of any common person, and the
" sheriff or other officer takes bail from such person against
" whom such process is, the sheriff or officer, at the request and
" costs of the plaintiff in such action or suit, or his lawful attor-

" ney,

4H BAIL IN CIVIL CAUSES.

** ney, shall assign to llie plaintiff in such action the bail-bond
** or other security taken from such bail, by indorsing the same,
*' and attesting it under his hand and seal, in the presence of
" two or more credible witnesses, which may be done without
*' any stamp, provided the assignment so indorsed be duly
*' stamped before any action be brought thereon ; and if the said
*' bail-bond, or other security taken for bail, be forfeited, the
** plaintiff in such action, after such assignment made, may bring
** an action and suit thereupon, in his own name ; and the court
*' where the action is brought may, by rule or rules of the same
" court, give such relief to the plaintiff and defendant in the
*' original action, and to the bail upon the said bond or other
** security taken from such bail, as is agreeable to justice and
" reason; and that such rule or rules of the said court shall
" have the nature and effect of a defeasance to such bail-bond
" or other security for bail."
4 W, & M. By the 4 W. & M. c. 4. " the judges in each court, or any

c. 4, IJOne bail « j.^^ ^^ them, whereof the chief to be one, may, by commissions
belore a com- " under the seals of their respective courts, appoint commission-
" ers to take recognizances of bail in suits depending before
" them ; and upon affidavit of the true taking of them, such
" recognizances shall be as effectual as if they were taken de
" bene esse before themselves : § 2. The cognizors, unless they
" live in London or Westminster, or within ten miles, may justify
" before the commissioners in the country."

[And by the last section, " any judge of assize, in his circuit,
" shall and may take and receive all and every such recogni-
" zance and recognizances of bail or bails, as any person shall
" be willing and desirous to make and acknowledge before
« them, <^c."]

Before this statute, bail was always taken de bene esse before a
judge, as it may, and must be still, if the cognizors live within
ten miles of London or Westminster; the commissioners are
obliged by rule of court to keep a book wherein are the names
of the plaintiff and defendant, and bail, and the person who
transmits the same, and who makes affidavit that the recojrni-

inissioner m
town, and the
other before a
commissioner
in the country.
Mandorfe's
Bail, 2 Chitt.
H. 90.||

||See Tidd's
Prac. 250.JI

[But in C. B. a

copy of tlie
writ whereon
bail is required
must be writ-
ten on parch-
ment, and

reco<Tnizanceof zance was duly acknowledged in his presence; on such affidavit
bail engrossed, the judges make a conditional allocatur, and the bail are to stand
Rules iind Or- absolute, unless the plaintiff except against them within twenty

days ; and if he except, the bail may justify by affidavit taken

before the commissioners in the country.

If one is arrested in London by a serjeant of the mace, upon a

plaint of debt entered in any of the counters, the serjeant cannot

take bail (r/), but the judge in court must, {b)

7. S. P. agreed, and like point agreed, where an arrest was upon a plaint in the
court of Nottingham, and the defendant in gaol under custody of the mayor, and not of the
serjeant ; and Cro. Eliz. 168. it is said, that in all co/poration courts the mayor, who is judge,

is gaoler also. Bail being a matter of record cannot be taken before any but the judge of

tile court, and not before the serjeant, though alleged secundum consuetudinevi villce ; but bail
for appearance only may be taken by the serjeant. Cro. Jac. 94. {b) Qu. If the secondaries,
in London, and their deputies, are not the proper officers for this purpose.

rThe

ders of C. B.
108.]

Cro. Car. 1 96.
lloli.Abr. 561
S. C, Jones,
226. S.C.
(a) Cro. Eliz

(A) What Persojis are authorized to take Bail, ^r.

445

[The sheriff cannot bail on an attachment, though a iudge at .
his chambers may.] (a) WiStra.

!l(a) It is now decided, that on an attachment out of chancery, the sheriffis neither compelled
nor prohibited to take bail, the statute not applying to such case ; but a bail-bond in such case
is good at common law, and the sherifF may sue on it. Studd v. Acton, 1 H. Black. 468.
Morris v. Hayward, 6 Taunt. 569. And though it was held in the Exchequer that the sherifF
could not take bail on attachments for nonpayment of costs, Phelps v. Barrett, 4 Price, 23., it
seems now settled otherwise, since such attachments are in nature of mesne and not final
process. Lewis v. Morland, 2 Barn. & Aid. 63. Tidd. 222. (9th ed.)||

Bengough v.
Rossiter,
4 Term R.
505. 2 H.
Black. 418.
(a) It has been
doubted whe-
ther the she-
riff can take
23. Tidd. 222.

II The statute hath two branches; first, as to the persons to be
let to bail ; and secondly, as to the form of the security. On
the first branch, it has been determined that the sherifF has no
authority to take bond for the appearance of persons arrested by
him under process issuing on an indictment at the sessions for
misdemeanor, but can only take a recognizance for their appear-
ance, (a)

bail on an attachment for contempt issuing out of a court of law. See 4 Price,
notd (9th edit.). Sed vide 6 Taunt. 569. 2 Barn. & A. 63.

Where the defendant is in actual custody, it is the duty of the 2 Will. SaunJ
sheriff to take bail if required ; and therefore, if a bail-bond be ^^'p| ^^^^^'■.
tendered with sufficient sureties, and the sheriff refuse to accept i5£ast 320.
it, he is liable to a special action on the case ; but the sureties Tidd, 223.
must have sufficient within the county where the arrest was (9th ed.)
made.

A bond with five sureties, three of whom are respectively Matson v.
worth more than the penalty, is sufficient, though the other two
are worth less than the penalty.

The clause which requires reasonable sureties is for the

benefit of the sheriff; and therefore, though he may insist on

two sureties, he may take a bond with one only.

422. 2 Bing. 227., and so also it is as to replevin bonds, see 7 Taunt. 28. 2 Marsh. 352. S.C.j
and see Tidd's Prac. 22.5. (9th edit.)

The second branch of the statute requires a security by bond ; 2 Will. Saund.
therefore an agreement in writing, made by a third person, with 59. b. Rogers
a sherifTs officer, to put in good bail for the defendant at the ^Vp ^^f?*
return of the writ, or surrender his body to the officer, or pay Fuller v. Prest*
the debt and costs, or an attorney's undertaking to the officer, 7 Term R.
for the appearance of the defendant, or to give a bail-bond to 109. Sedg-
the sherifF in due time, has been holden to be void by the sta- ^""^g ^d
tute ; and an action will not lie on such agreement, (c) 5g8 f^\ ^^^^

statute applies only to obligations to the sherifF, and not to the plaintiff; therefore a bond
or undertaking given to the plaintiff) though not according to the statute, is valid. 2 Saund.
59. b.

868.
n»c.
ed.),

. . _ .ases

that only. Therefore, if the bond be not made to the sheriff, or there cited,
if it be not made to him by his name of office, or if it be single,
without any condition at all, or with an impossible condition, or
if the condition be not for the defendaut's appearance, or for that ^

and

Booth,

5 Maule & S.

223.

10 Co. R. 100.
b. Cro.Eliz.
624. 808. 852.
862. 9 Moo.

446 BAIL IN CIVIL CAUSES.

and something else, it is void by the statute. So also it is void
if executed before the condition is filled up.

If the bond be substantially good, it cannot be avoided for
any trifling informality or variance of the condition from the
writ in the description of the plea, or of the time or place of
appearance. Thus, where the writ was to answer the plaintiff
in a plea of debt for 320/., or in a plea of trespass, with an
ac etiam, and the condition was to answer the plaintiff in a plea
of debt or trespass generally, or without mentioning the plea at
{a) Cro. Jac. all» the variance was holden to be immaterial (a) ; for the statute
286. Tidd. only requires a bond conditioned for the defendant's appearance ;
225. (9th ed.) a„(j ^jje description of the plea is merely surplusage. And accord-
ingly, where the sheriff, upon an original writ in a plea of tres-
pass on the case on promises, took a bail-bond conditioned for
the defendant's appearance to answer the plaintiff in a plea of
{b) 6 Term R. trespass, the court held it to be valid, {b) So, where the writ
702. ; and see j^ trespass was to appear before the lord the king at Westminster^
riq"^" ° ^^^ ^^^^ condition was to appear before the justices of the King's

Ic) 2 Lev. 180. Bench at Westmi7ista\ the bond was holden good.(c) And where

2 Vent. 237. the writ by original was returnable before the lord the king,

wheresoever he shall then be in England^ and the condition was

without the words * wheresoever, 8^c.^' the court gave judgment for

the plaintiff in an action upon the bond ; saying, they would

understand, that by appearing before the king, was meant

before the king in his court, and not before the king in per-

(</) 2 Stra. son. [d) So, where the condition of the bond in an action by

1155,6. original, was to appear before the king at Westminster, it was

(e) 9 East. 55. ' deemed sufficient, (e) And where a declaration on a bail-bond,

but see iChitt, in setting out the condition, stated, that if the defendant should

R. 323. appear Sfc. to answer the plaintiff, according to the custom of his

majesty's Court of Common Bench here, the obligation should be

void ; and on the production of the bond, the latter words were

omitted; the Court of Common Pleas held, that this was no

variance, as it was only necessary to set out the condition of its

(s) 3 Moo. legal effect, (g) But an allegation, that an action was depending

214.; and see in his majesty's Court of King's Bench at Westminster, is not sus-

3 Stark. Ca. tained by proof of a pliiries bill of Middlesex ,• for by such allega-
?,^/ jyr JO tion the Common Bench must be intended. (//) So, where a
S. 166.; and capias ad 7-espondendum was made returnable before his majesty's
see 7 Taunt, justices of the bench at Westminster .• by virtue of which the
271- sheriff issued his mandate to the bailiff of a liberty, commanding

him to take the defendant, so that the sheriff might have his body
before his majesty at Westminster, and the bailiff took a bail-
bond conditioned for the defendant's appearance before his said
majesty at Westminster, the Court of Common Pleas held, that
(i) 6 Taunt. the variance between the bail-bond and the writ was fatal ; and
551. 2 Marsh, therefore, that the bail-bond was void by the statute 23 H. 6.
an BuS' ^' ^' ^^^ ^^ ^^^ ^^^'^ ^^^" holden, that the statute 12 G. 1. c. 29.
550.- bu^t see ^^^ preventing frivolous and vexatious arrests, is merely directory
2 New R. 202. to the sheriff, and does not avoid the bail-bond where there is
semb. contra, no affidavit of the cause of action (k), or the sum sworn to is not

indorsed

(B) In what Cases Special or Common Bail is required. 447

indorsed on the writ ; or even where the bond is taken in, a (0 2 WiU. 69.

penalty being more than double the amount of the sum sworn ^ Burr. 331.;
f. /7\ and see Tidd,

^^-y^ . , , J 225. (9th ed.)

It sometimes happens, that persons arrested on mes7ie process,

may not be able to find sureties for their appearance at the

return of the writ, and yet may be able to deposit the money for .

which they are arrested, together M'ith a competent sum for

costs; and therefore, by the 43 G. 3. c. 46. §2. it is enacted, that 43 G. 3. c.46.

all persons who shall be arrested on mesne process, may, in lieu y ^' ^°'' ''?®

of giving bail to the sheriff, deposit in his hands the sum comtruction

indorsed on the writ, together with 10/. to answer the costs to of this act, see

be incurred up to the time of the return, and also such further Tidd's Prac.

sum, if any, as shall have been paid for the king's fine on any (^^^ ^'^'^O ^2'^'

original writ; and shall thereupon be discharged from such

arrest, and that the sheriff shall pay such deposit into court.

And in case the defendant shall afterwards duly put in and

perfect bail in such action, the sum deposited shall, on motion,

be repaid to the defendant. But in case the defendant shall not

perfect bail, then the sum deposited may, on motion, be paid

to the plaintiff, who may thereupon file common bail for the

defendant.

And now, by the 7 & 8 G. 4. c. 71. § 2. it is enacted, that in "^ ^^ ^'^•
all cases in which the defendant shall have been discharged from
arrest upon making the above deposit, and the said sum shall
have been paid into court, the defendant, instead of putting in
bail, may allow the sum paid in to remain in court, to abide the
event of the suit ; and in cases where the defendant has given
bail to the sheriff, or remains in custody, the defendant may,
instead of putting in and perfecting special bail, deposit the sum
indorsed on the writ, together with the king's fine, and 20/. for
costs, to abide the event of the suit; and the defendant shall
thereupon file common bail ; or in default thereof, the plaintiff
may do so, and the cause shall proceed as if the defendant had
perfected special bail. And if judgment in the said action shall
be given for the plaintiff, he may, on motion, receive the money
so deposited, or so much as will satisfy the judgment and costs
of the application. And if judgment be for the defendant, or
the plaintiff discontinue, or be otherwise barred, the money
deposited shall be paid to the defendant.

And by § 3. it is provided, that any defendant who has made § 3.
his election to make the deposit, may, before issue joined, or
interlocutory judgment signed, receive it out of court on per-
fecting special bail.

And by § 4. any defendant who has perfected bail, may, if the §^- ^*^^ ^'"°»
court think fit, make such deposit; and thereupon the court may
direct a common appearance or common bail, and an exoneretur
to be entered on the bail-piece. ||

(B) In what Cases Special or Common Bail is required.

XT ERE it must be first observed, that regularly, after judg- F«^ head of
ment, no bail is to be taken; for the plaintiff having ascer- Sheriff,tixiA

tained

448 BAIL IN CIVIL Cx\USES.

ndepost^where tained his right, and proved his demand, the defendant must pay

upon bringing j^g condemnation money ; for which purpose a writ of execution

anTwhere'^"'^' issues, to which the sheriff" can take no bail.

upon reversing an outlawry, title Outlawry, and Carth. 459.

F. N. B. 106. But if one in execution brings an attaint (a), he may have (b) a

sRoU.Abr. ^j.jj. J.Q |.jjg justices (c), commanding them to let him to main-

112. (a)Cro. ^ . ^ J W> &

E\iz. 5. per P"2e-

Wray, — the court doth not usually bail, for the verdict is intended true till reversed ; but in

some cases upon good consideration they will bail. (6) Reg. 123. a. (c) Dyer, 193. pi. 29.

though at first it was doubted whether it lay to the justices de B., and a case cited cont. where

it was commanded to the Warden of the Fleet to have the bodyin court quolibei die, ^-c. [See

the form of this writ, and that C. P. may send to the marshal of B. R. for such a prisoner, and

in what form it shall be. Dyer, 364. b.]

y^ If an audita querela is founded upon a release or record, the

pi. 31*. Roll, plaintiff" may be bailed.

Rep. 132. said per Coke, S. C, but such bail must be taken in open court. Bulstr. 140. Latch-

113.

R I! R 19 ^"^ ^^ upon {d) a surmise of a matter of fact only, it is other-
p^ CoS'c.J.' wise.

Roll. Rep. 384. S. P. per Coke, who said that in the time of Dyer and Wray, and all his time,
the practice had been never to bail, where grounded on a matter of fact only ; but where
upon a matter of writing in discharge the plaintiff had used to be bailed, the defendant being
called to know whether he could deny it. Vide Sid. 286. Dyer, 285. pi. 41. 339. pi. 46.; and
vide 1 1 H. 6. c. 10. 2 Roll. Abr. 113. {d) Yet vide in such cases where the plaintiff was bailed.
Cro. Jac. 29. 67.

Raym. 475. If in an homine replegando an eloiigatus is returned, and the

Sid. 210. defendant taken upon a withemam ; though this is no execution,

e) 1 ne aoc- j. ^^ defendant shall not be bailed unless he will confess the
trine here laid •^ , . i i • i - ^ i \

down is ob- takmg and having the party in custody. \e)

jected to in the case of Moor v. Watts, 2 Salk, 582. where it is ruled that a defendant taken
upon a withernam may, if he plead non cepit, be admitted to bail. Wife v. Lawrence, Barnes,
59. S. P.]

Raym. 475. But, if in an action for a false return of an elongatus against the

sheriff" it is found for the plaintiff", he may be bailed.

As to the cases in which special or common bail are required,
I shall consider,

1. What the Debt must amount to for •which there must be
Special Bail.

Comp. Attor. The old rule in the Complete Attorney is, that if the defendant
printed 1667. be arrested by mesne process, as capias, alias, or pluries, and
fol.45. (g)The j.jjg plaintiff" hold him not sufficient to answer to debt or da-
entered by"the niages contained in the writ, the same amounting to 20/. or up-
attorneys as wards, that in this case the plaintiff", upon the return of the writ,
officers of the by entering a ne recipiatur {g) with the filazer, out of whose office
court, after ^.j^^ capias did issue, may have special bail to be put in to this
which noap- • -^ ,.,,-, r -i'^ * -ir • j cu^

pearance is to action, which the deiendant must put in berore some judge or the

be received court where the cause depends, who will accept of such bail as
till bail is filed the validity or weight of the cause doth require, or in his discre-
with the judge, tion ghaU be thought fit.

This was the rule that both the Courts of King's Bench and
Common Pleas went by, but it was afterwards sunk to 10/.,
which has long been the standing rule of the courts.

And

(B) In wfuit Cases Special or Common Bail is required. 449

And now by the 12 G. 1. c. 29. it is enacted, "that where 12G. l.c.29-
" the cause of action shall not amount to the sum of 10/. in a . ^5„„Jofr'

. „ . , 1 • -/v 1 II tute, and 2IU.

*' superior court, or 40^. m an inferior court, the plaintiii shall 2. c. 3. where-

** only serve the defendant with a copy of the process, and shall by it is made
** not arrest his person ; and that in ail cases where the plaintiiF's perpetual, and
" cause of action shall amount to the above sums or upwards, ^j^grgbyit is
** affidavit shall be made and filed of such cause of action, and explained and
" the sum or sums specified in such affidavit shall be indorsed on amended, and
** the back of such writ or process ; for which sum or sums so ^^- ^:^:]^^'
" indorsed the sheriff or other officer shall take bail, and for no ^xteifded'to*
" more." Wales, [^^^^

1 9 G. 3. by which the cause of actios in inferior courts is raised from 40s. to 10/. But a debt of 20l.
must be sworn to, to hold to bail in the counties palatine, or in Wales, on process from Westmm-
ster-Hall ; for this statute being in the affirmative, without negative words, is not a repeal of
the 11 & 12 W. 3. C.9. which requires a debt to that amount in order to hold to bail in those
places. Smith v. Dudley ,T2 Stra. 1 102. Rayner v. Brough, Barnes, 89. Vide tit. Soldiers (B).)

B And by the 7 & 8 G. 4. c. 71. § 1. (reciting the above act, and 7 & 8 G. 4.
the 5 G. 2. c. 27., the 19G. 3. c. 70. and 43 G. 3. c.46., and that it is '^•'^Y^^^'l^g
expedient to extend and render them more effectual), it is enacted, i^grgth ed.)*
that after the 1st o^ August 1827, "no person shall be held to
" special bail upon any process issuing out of any court, where the
** cause of action shall not have originally amounted to the sum
** of 20/. or upwards, over and above and exclusive of any costs,
** charges, and expenses that may have been incurred, recover-
** ed, or become chargeable in or about the suing for or
** recovering the same, or any part thereof: and that in all
** cases where the cause ef action shall not amount to 20/. or
** upwards, exclusive of such costs, charges, and expenses as
** aforesaid, and the plaintiff or plaintiffs shall proceed by the
" way of process against the person, he, she, or they shall not
** arrest, or cause to be arrested, the body of the defendant or
*' defendants, but shall serve him, her, or them personally within
** the jurisdiction of the court with a copy of the process and
** proceedings thereupon, in such manner as by the said act of
" the twelfth year of the reign of his late majesty King George
" the First is provided in cases where the cause of action shall
*' not amount to 10/. or upwards in any superior court, or to
" 405. and upwards in any inferior court ; and that where the
** cause of action in any court shall not amount to the sum of
** 20/., exclusive of such costs, charges, and expenses as afore-
*' said, no special writ or writs, nor any process specially therein
** expressing the cause or causes of action, shall, from and after
" the first day of August, be sued forth or issued from any
" court in order to compel any person or persons to appear
'* liiereon in such court ; and all proceedings and judgments that
" shall from and after the said first day of August be had on
*' any such writ or process shall be, and are hereby declared to
" be, void and of no effect."

yAn affidavit of a debt due for goods sold and 'delivered not Cathrowv.
stating " by the plaintiff to the defendant," or stating "by the "'^er.sEast,
plaintiff," without "to the defendant," or goods sold and deliver- e^u's, e'^Trunl'
ed yor without stating to the defendant, or for goods bargained lyj/xajlor v.

Vol. I. G g and '

450 BAIL IN CIVIL CAUSES. I

Forbes, and sold witLout alleffing them to be delivered, has been held

11 East, -15. Ijj^j^ ^ °

Young V.

Gatien, 2 Maule & S. 603. Bell v. Thrupp, 2 Barn. & A. 596. Hopkins v. Vaughan, 12 East,

50'?.

Brown V. Gar- But an affidavit of a debt due from defendant to plaintiff for

nier, G Taunt. j^{j.g ^f carriages of plaintiff to and for the use of defendant ik

Synionds v. sufficient, as " hired to defendant" is the same as *'let to hire,"

Andrews, which implies a mutual contract.

5 Taunt. 751.

Durnford v. The affidavit must state the money to be lent, or goods to be

\T^*'f%. c sold, or work to be done ai the request of the defendant, or it is
446 • but see ^^^ ' *"^ money paid must be stated to he for the defendant,
in C. P. Eyre v. Hulton, 5 Taunt. 704. Bliss v. Atkins, Ibid. 756. Fricke v. Poole. 9 Barn. &s
C. 543.

Macpherson v. An affidavit that defendant is indebted to plaintiff on a written
Lovie, 1 Barn, agreement to marry plaintiff or pay 1000/., is bad, unless it state

6 C. 108. ; and ^jjg consideration for such promise ; for the court can intend no-
Trist 10 East thing in an affidavit which is to deprive a party of his liberty.
.358. Jacks V. Pereberton, 5 Term R. 552. Wildey v. Thornton, 2 East R. 409. Edwards v.
Williams, 5 Taunt. 247.

Humphries v. In affidavits on bills and notes it must appear in what charac-

W ins low tgr j}jg defendant became party to the bill, whether as drawer,

6 Taunt. 551. . •, . v
Maclui V. Fra- endorser, acceptor, d^c.

ser, 7 Taunt. 1 72.

rj , , And it is usual, though not absolutely essential, for the plain-

Saddington] tiff's character on the bill to be stated in the affidavit.

7 East, 94. Lamb v. Newcomb, 2 Bro. & B. 345. Balbi v. Batley, 1 Marsh. 424.

Jackson v. -^"^ ^^^^ affidavit must show the bill to be due.

Yate, 2 Maule & S. 149. Edwards v. Dick, 3 Barn. & A. 495. Holconibe v. Lambkin, 2 Maulc

& S. 475.

u . , And must not state the defendant's Christian name merely hy

Hawkins initials, although he may have so signed the bill.

4 Barn. & A. 536.

Bylandv.Iving, The affidavit on a bond should describe the date, parties,

1 Moo. 24. amount of penalty, and sum due : but an affidavit of debt for sf)
FilliT 4 Maule "^^ch for principal and interest due on a bond made by the de-
& S. 350. fendant to plaintiff is sufficient. If it merely state so much to

be due on a bond in the penal sum of 10,000/. it is insuffi-
cient ; for though penal sum implies that there is a condition, it
may be a condition for performance of covenants, in which
case breaches must be assigned.
Stone V. Ball, Where the debt is foreign money, the value in English cur-

2 Chitt. R. 16. j.gjj^.y j^yg^. ^g shewn. ||

Jacks V. Pem- [The affidavit to hold to bail under this statute must shew hov

berton, sTerm jjjg ^jg^j. arose ; and that plainly and distinctly, neither in general

R.552. Cooke . • J c fn "^

V. Dobree terms, nor in terms ot art.]

1 H. Black. R. 10. Hubbard v. Pacheco, /</. 218. Cope and another v. Cooke, Dougl. 46".
Heathcote v. It must be a positive oath of the debt, made at the time of suinf ;

Goshn 2Stra. ^^^ ^j^g process. It must not be argumentative, point to any fur-
1157. Jenmngs ^, .\ ^ ,. ,9 i .u- . i

V. Martin ^"^^ evidence, reier to any thing dehors^ or leave any thing to ot

collectetl

(B) In "what Cases Special or Common Bail is required^

451

collected by inference, or rest only in belief ; but must be ex- - n „ ,.~~
pressed in terms of direct absolute assertion. Bright v. Fur-

rier, Id. 1687. Anon. 1 Wils. 121. Champion v. Gilbert, 4 Burr. 2126. Wheeler v. Cope-
land, 5 Term R. 364. Mackenzie v. Mackenzie, 1 Term R. 716. Powell v. Portherch, 2 Term
R. 55. Williams V. Jackson, 3 Term R. 575. Collier v. Hague, 2 Stra. 1270. See the case of
Moultby V, Richardson, 2 Burr, 1032., where the words " as he computes it," added to a posi-
tive oath of the debt were holden by Foster and Wilmot, (the only judges then in court,)
not to invalidate the affidavit : and the case of Chater v. Jaques, Cowp. 529., where in trover
against several, an affidavit that " all the defendants had possessed themselves of the goods, and
" had refused to deliver them up, and that some or one of them had converted them," was
allowed to be sufficient, the cause of action being expressed with precision in the preceding
parts of the sentence, and those parts being independent on the subsequent words, " sovie or
" one of them" which are merely surplusage. In the case of Loveland v. Basset, Tr. 16 G.2.
cited in 1 Wils. 232.; an affidavit by the assignee of a bond that went only to belief oi the
existence of the debt was admitted, the bond itself being considered as some evidence of the
debt ; a presumption that it was not paid, arising from its neither being cancelled, nor given
up to the obligor.

Nor is this strictness required only where it is made by the Claphamson v.
plaintiff himself: for it must be equally direct and substantive „ c^!.T^"oo^
when It comes irom a third person. And a detective aifadavit by Rollinv.Mills,
such person cannot be helped by one made by the plaintiff him- i Wils. 279.
self in another country ; for the oath abroad is no ground for Y^" Morsell v.

nrocess /zpr/- Julian, M 231.

process nere. j^j^^ ^ gg,j,

sante, 2 Stra. 1209. Pomp v. Ludvidgson, 2 Burr. 655.

But it is sufficient if assignees of bankrupt, executors, S^c. VValrond v.

swear that they believe the debt to be due, because from their F^^"sham,

• • • 2 Strsi 1219

situation belief is the highest degree of certainty which they can Barclay v.

be expected to attain. But it must not be forgotten, that, in Hunt, 4 Burr.

these cases, the insertion of the belief oi the deponent is essential, ^992. Tonna

and can on no account be dispensed with. And this exception, it T* „„ ^lu 1 /^*
^, . ^ /> 1 . ^ • • ^1 • ^ J 2283. Sheldon

seemeth, is not confined to persons suing in this representative y. Baker

character, but wherever from the nature of the question the party i Term R. 83.
can have but a ground of belief, an affidavit to that extent only Id.i 17. Hob-
will be admitted, son V Camp-
bell, 1 H.
Black. R. 245. IJMayor of London v. Dias, 1 East, 237. Cass v. Levy, 8 TermR, 520. Knight
V. Keyte, 1 East R. 415. King v. Turner, 1 Chitt, R. 58. Lee v. Sel wood, 9 Price, 323. Moil-
ing v. Buckholz, 2 Maule & S. 563. Lowe v. Farley, 1 Chitt. R. 92. Rowney v. Deane, 1 Price
li. 402. Tidd, 1 82. (8th edit.JiJ

A still looser form of affidavit is allowed in actions upon penal Davis v. Maz-
statutes. It is enough in those if the plaintiff state in general p'"f'"» ^J'*^*™
terms the nature of the offence, and shew the amount of the y ' Bap^jst ^^
penalty : he need not specify the particular acts which constitute Rebord,
the offence, or charge in words directly that the defendant hath sBurr. 1569.
committed it ; nor need he swear that the defendant is indebted to ^^atson v.
him in the sum forfeited, or that the debt is still due ; because it jj g^^ ^ ^^1^
is possible that the right of action may have previously attached recital of the
in another person ; and besides, as no one is entitled to the year in which
penalty until process is actually sued out, it is not a debt due to the statute
him at the time of making the affidavit. thoiTcrh th?h)-

sertion of it be unnecessary. Ibid.

It is to be observed that there is a difference between the iTcrmR.717.
practice of the Court of King's Bench, and that of the Court of * ^'^f^- **•
Common Pleas, with respect to the aifidavits to hold to bail. In v*Hawki"s°"

G g 2 the * '

452 BAIL IN CIVIL CAUSES.

iSS^ I

1 Wils 335 ^^^ latter, the defendant is suffered to file a cross affidavit, antl
Roche V. ^^^ plaintiff may afterwards file an additional one in order to
Carey, supply the defects of the first. In the former court, the plaintiff I

2 Black. R. can file only one affidavit, which nothing can be received from
8 jO. Cope V. jjjg defendant to explain or contradict, or from the plaintiff to
4fi7. Jacks V. * strengthen or even impeach, (a) In this court therefore it isj
Pemberton, absolutely necessary that the affidavit should have all that posi-i

5 Term R. 552. tiveness and precision above stated. In the other the sanio
•■[i ^ &\^ necessity doth not exist, as that court will resort to other media
904. 2Chitt. of proof, and allow the plaintiff to explain himself more fully in
R. 20. 13 Price, a subsequent affidavit. Not that that court, though less strict in
8. 6 Dow, & tlie fii-st affidavit, is wholly inattentive to it, or will in all events
isgToth ' ' permit a supplemental one to be filed: for if the first be nOt a
edit.)!! {b) Ni- sufficient one to found the process, as, if it be made by a person
chols V. Daly- infamous ; if it be so drawn, though by a mere slip of the pen,
hanty, Barnes, as that perjury cannot be assigned upon it; if it wholly omit to

rv'^.,^t!o^ ^" state the consideration of the debt, a supplemental one cannot

uronenian, • i /7\

2 Wils. 224. be received, [o)

Cooke V. Dobree, l H. Black. R. 10. ||The Court of C. P. will only receive a supplemental

affidavit to supply something which is ambiguous in the original. Green v. Redshaw, 1 Bos.

6 Pull. 227.; and the discretion of that court in receiving them is very sparingly exercised.
Armstrong v. Stratton, 1 Moo. 112.||

R E 1 5 r 2 It is no objection to the affidavit that it was sworn before a
JB. R. Howard commissioner, who is concerned as attorney for the plaintiff.
V. Nolder, Barn. 60.
2Stra. 1148. It is inadmissible, if made by a person convicted of felony, or

2 Wils a"?"; .1 • r • J t •"

n VT' Other miamous crime.
Barnes, 79.

5 Burr. 2690. In every action there must be a separate affidavit ; as one will
Dougl.217. not serve for different actions against one, or several defendants,
erm .2 4. ^^^j -^ there be only one in such case, it is a fatal irregularity,
and cannot be waved by any act of the defendant.
Hussey v. Bas- If there be iio affidavit, or if it be defective or not duly filed,
kerville, cited qj. jf ^\^q g^jjj sworn to be not indorsed on the writ, the court
1 Burr 332 * ^^^ discharge the defendant on common bail.] ^

j|See 2 Taunt. 163. 1 Maule & S. 230. 2 Moo. 192. 8 Taunt. 242.1| *

However the In an attachment of privilege, which is a capias in the first
above stat. process, the defendant is held to bail for any sum though never
hath super- ^° small ; for this being a capias in the first process without
seded this doc- summons, does not arise fiom a supposition of a nihil returnetl,
trine, and but arises from a debt due to the officers of the court, by the
at this day an ^^^^ ^f ^^^^ court : and therefore another officer ought not to
attorney can- . , '. . . ^ i -i i . °

not any more appear without seeing a security given tor such debt.

than any other person, hold defendant to bail unless the demand be 10/. or upwards; [jand now
20/. by 7&8G.4. c. 71. $1.||

2. Where the Demand is uncertain, and sounds only in Damages.

Vide 13 Car. 2. Where the action is only for damages, there regularly the
m^ ?"^' party is not to be holden to special bail; for there is no certain
Tri^^^io^East ^^^ ^'^^' which bail can be ascertained.
358. Edwards v. Williams, 5Tauut.247. Dutton v. Solomonson, 3 Bos. & Pull. 582, Mi is-

(B) In what Cases Special or Common Bail is 7'equired. 453

sen V. Price, 4 East, 147. Lear v. Heath, 5 Taunt. 201. Fry v. Malcolm, 4 Taunt. 705.
Tidd's Prac. 171. (9th edit.)I|

But in actions of assault and battery, scandalum magnatum, and Sid. so?.

for other personal wrongs, in whicli it is apparent the damages Roll. Abr. 335.

will exceed the sum of 10/., the court, or any judge of the court, Bro\vnl!90.

may and do, on good cause shewn, give leave to the plaintiff to sid. iss.

sue out a writ with the clause of ac etiam billce, to hold the Raym. 74.

defendant to special bail, (a) (") ?f ^^'*

t ^ ' must be on

an affidavit of the facts. llSee O'Mealy v. Newell, 8 East, 564. Imlay v. Ellefsen, 2 East

R. 455.11

So upon an affidavit of a great maiJiem, and that he intended Sid. 276. Spe-
to declare in trespass, the court ordered a special latitat, with an j ,^* °'^'
ac etiam, and that so there should be special bail. in case of a

notorious battery. Sid. 307. — So in case of a foul battery against a man and his servants.
Comb. 57. See too I Black. R. 192. — But this seems to be discretionary in the court ; there-
fore vide Mod. 2. j special bail denied for putting an arm out of joint j and t>«fc Roll. Abr. 355.
pi. 14.

In debt upon a bond for performance of covenants {h), the Sid. G3. (6) So

court will order bail according to the (c) breaches assigned, id) * «petial bail in

o V ' o \ ' account, secus

in debt upon an account. 2 Roll. R. 53. Lev. 300. (c) And the measure of that shall be
taken from the plaintiflTs oath. Salk. 100. pi. 11. Barnes, 109. Say. R. 109. Dougl.449.
[(d) But a defendant may be arrested for the penalty of a bond conditioned for the perform-
ance of a promise of marriage, &c., where the penalty is the real debt, or rather in nature of
stated damages. 1 Wils. 59. 5 Burr. 1351. Dougl.449.] ; Hand see Stinton v. Hughes, G Term
R, 13. Wilday v. Thornton, 2 East, 409. Holt's N. P. Ca. 45. n.]} * This must mean accord-
ing to breaclies stated in plaintiff's affidavit.

[So in debt upon bond, conditioned for \he payment of money. Tidd's Prac.
though the penalty is, strictly speaking, the legal debt; yet, as ||i85. (9th
it is now considered upon the statute of 3 & 4 Ann. c. 16. § \S. ^'^^'M
to be merely a security for principal, interest, and costs, the
defendant cannot be holden to bail for more than tlie sum really
due by the condition.

In trover, the defendant maybe arrested of course, though 6 Mod. 1 4.
the action be brought for uncertain damages; for this is more -?,^'!?- '•^2-
an action oi propeity than a tort.'] g q ^^^^ j_j

Say R. 253. S.C. Cowp. 529. But it is said, that where the defendant, being a custom-house
officer, was arrested in an action of trover brought against him for seizing goods, and it ap-
peared by affidavit that there was a reasonable foundation for the seizure, that the goods were
deposited in the king's warehouse, and that the defendant had used due diligence in proceed-
ing towards a condemnation in the Exchequer, the court ordered common biiil to be accepted.
2 Black. R. 1018. 1 Wils. 335. Say. 53. semb. cont.

II But by the rule of court oi Hilaiy term, 48 G. 3. no person 9 East, 325.
can be held to special bail in an action of trover or detinue, with- ^'^'" l^'ij^' ."*.
out an order made for that purpose by the Lord Cliief Justice tr^ycr since
or one of the Judges of the Court. the rule, see

Tidd, Append. X. $85. (9th edit.)

An affidavit by the assignees of a bankrupt for goods of which Molliny v.
the defendant had possessed himself, and which he refused to g JJ^yi"'^ g
deliver to the bankrupt before his bankruptcy, and to the ^g^^
assignees since the b.nnkruptcy, and had converted them to his
use, as appeared by documents as deponent believed, was held
defective.

Gg 3 ^ An

454

BAIL IN CIVIL CAUSES.

Clarke v '^^ affidavit in trover for a bill of exchange should state the

Cawthorne value, and that the bill remained due and unpaid. 1|
7 Term R.521.

[Where there have been mutual dealings between the parties,
the balance is considered as the debt at law as well as in equity.]

II Where the plaintiff holds the defendant to bail for the amount

due to him, without givinfj credit for the items on the other

side, it is an arrest without probable cause within the meaning of

the 43 G. 3. c. 46. and the plaintiff is bound to pay costs ; aliter

if the defendant refuses to state the mutual account. ||

259. And in such case an action for malicious arrest may be maintained. Austin v. Deb-
nam, 3 Barn. & C. 1 4 1 .

Tidd's Prac.
35. 4 Burr.
1996.

Dronefield v.

Archer,

5 Barn. & A.

515, Germain

V. Burrows.

5 Taunt. R,

Salk. 100.
Vide Dougl.
449.

In an action of debt on a bond, though the defendant says
it was by duress^ or on an usurious contract, yet there shall be
special bail, for the merits of the cause shall not be determined
on motion ; neither will the court put a slur upon the plaintiff's
cause, which ought to come down fairly to trial, without pre-
judice.

So in an action for money won at play, if the contract be
lawful, as being under 100/., the defendant must put in special
bail, (a)

(a) There are few cases now where such an action will lie ; and query, if for any sum amount-
ing to 10/. on games mentioned in the stat. 9 Ann. c. 14.? See that stat. and the several acts of
2G.2. C.28., 12 G. 2. c. 28., 13 G. 2. c. 19., and 18 G. 2. c. 34. See too Young v. Moore,
2 Wils. 67.

Salk. 100.
pl.lO. 12 Mod.
295. Fidehead
of Gaming,

{b) Almanzor

V. Davilack,

1 Ld. Raym.

679. Com. R.

94. S. C.

Hayes, Stra.

439 "'

Archer v.

Champreys, 1 Bro. & B. 283.1|

Kearney v.
King, 1 Chitt.
R. 273.

[3. Whether a Defendant can he holden to Bail twice for the same
Came of Action.

Regularly, a tean cannot be twice arrested for the same cause :
and this rule was formerly so rigidly adhered to, that, where
the plaintiff' was non-prossed for want of a declaration, he could
not afterwai'ds arrest the defendant in a second action, {b) But
a different doctrine now prevails ; for the plaintiff is said to suffer
enough by paying costs in the first action, and therefore ought

llbut see ^^^ ^^ j^g -^^ ^ worse condition than before, (c)]

Salisbury v.
Whitehall,
Tidd, 178.

Tuckford V.
Maxwell,

6 Term R. 52.

Maule V.
Murray,

7 Term R. 470.
Imlay v.
Ellefsen,2 East, 455.

II Where the plaintiff is nonsuited for a variance, or for not
being able to prove an instrument, he may bring a second action
and arrest, though the defendant was arrested in the first.

So also where defendant after being arrested pleads in abate-
ment the nonjoinder of co-contractors, he may be afterwards
arrested jointly with them.

And where the defendant on beinsr arrested gives a draft or
new security for the debt, if this is dishonoured he may be re-
arrested.

And after arrest in a foreign country the defendant may be
arrested here, unless it appear that the plaintiff might proceed
as beneficially abroad.

And

(B) In "what Cases Special or Common Bail is required. 455

And so also after an arrest on a ne exeat mgno in this country, Musgrave v.
or on a foreign attachment in the Lord JVWyor's Court, the de- ^^^dex,
fendant may be arrested on process out of other courts. Wood v

Thomson, 5 Taunt. 851.
If the defendant is arrested by mistake on two separate writs, Powell v.
in separate counties, for the same cause of action, the courts will "Anderson,
enter an exoneretur on one of the bail-pieces. ^32 • and 'see

Bullock V. Morris, 2 Taunt. 67. Barnes v. Maton, 15 East, 631.

If the plaintiff becomes bankrupt after arresting the defend- Carter v. Hart,

ant, the defendant may be arrested again at suit of the assignees ^ Chitt. R.

for the same cause of action, unless the former suit were brought ^^^'
by the assignees in the name of the bankrupt.

After judgment is reversed in error, a party may be legally Cartwright v.

arrested for the same cause of action. " Keely,7Taunt.

192.

And if the defendant is discharged from the first arrest in Housin v.
consequence of an act over which the plaintiff has no control, (as Barrow,

the alteration of the warrant by the sheriffs officer,) he may be J,T^'''" ^;

, J . „ ' / >i zio.i and see

arrested again. || Woodmeston .

V. Scott, 1 New R. 15. Tidd, 175, 176. (9th edit.)

[Where the bail in the first action are forsworn and insufficient, Olmius v. De-
the court will permit the plaintiff to arrest the defendant again in '^".V' 2Stra.
a second action, even without discontinuing. i^^G.

Where the plaintiff, having misconceived his action, moves to (a) Belifante v.
discontinue upon payment of costs, he may after the costs are Levy, 2 .-jtru.
taxed and paid (a) take out a new writ for the same cause, and ^209. (6) Bates
arrest the defendant de novo, {b) 2*Wils?38i

||MoIling V. Buckholz, 3 Made & S. 153. But not if the first arrest is grossly negligent or
vexatious. Wheelwright v. Joseph, 5 Maule & S. 93. Archer v. Champneys, 1 Bro. & B. 289»
Tidd, 174.11

But where the plaintiff, not liking the bail in the former Belchier v.
action, obtained a side-bar rule for leave to discontinue upon ? o"^ ofno
payment of costs, and afterwards proceeded to charge the de-
fendant in custody ; the court, conceiving this to be a trick, dis-
charged the side-bar rule ; so that the bail still continued liable.

And wherever the second action appears to be vexatioits (c), or W Cox v.
the defendant is arrested or detained in custody therein, after 2 Black. R.
being superseded ov super sedable'm a former action by the laches {d) 309. (rf)Cliam.
of the plaintiff, the court will discharge the defendant on com- bersv. Kobin-
mon bail. Nor will a promise to pay the debt [e) subsequent to ''°"' ^\\^\
the supersedeas entitle the plaintiff to require special bail.] Branthwaite *

111(1.945. Hall V. Howes, 7iii(/. 1039. Ca. temp. Hardw. 244. S. C. Cratchfield v. Seward,
2 Wils. 93. Blandford v. Foot, Cowp. 72. (e) Taylor v. Wasteneyes, 2 Stra. 1218.] ||Daniei
v.Dodd, 8 East, 334.1|

II And a variation in the form of action (as money had and re- Imlay v.Ellef-
ceived, and trover,) will not entitle the plaintiff to a second arrest, ^^"» ^East,
if the substance of the cause of action is the same.||

[In an action of debt on a judgment, whether after verdict or 2 Stra. 782.
by default, the defendant cannot be arrested, if he was pre- Newton v._
viously arrested in the original action; even though the bail in J'^T'imn-, Say.

G g 4f that

456

BAIL IN CIVIL CAUSES.

that action have sincS become insolvent (a), or the plaintiff has
released them by deCTaring in a different county (i), or the de-
fendant has surrendered in their discharge, or obtained a super-
sedeas, {c)

De la Cour v. Read, 2 H. Black. R. 278. (c) 2 Stra. 1039. R. H. 8 0. 2. C. B.; but see Cas.
pr, C. B. 34.

It is now the settled practice as well of the Court of K.B. a&
of that of C. P., to hold to bail in an action on a judgment, where
the damages and costs amount to 10/. or upwards, tliough the
original debt or demand were under that sum.
||This was altered by the 43 G. 3. c. 46. § 1 . and now by 7 & 8 G. 4. c. 71 .
no person shall be held to special bail where the original cause of action does not amount to
20/. exclusive of any costs.j|

So it is now said to be the practice of both courts to hold
to bail in an action of debt upon a judgment, notwithstand-
ing error brought, provided no bail was given in the original
action.

In an action on a recovery in a foreign court, there shall be
only common bail.]

H Where the defendant was arrested in this country on an in-
strument made in France, and which, according to the French
law, ditl not subject his person to arrest, it was held by Eyre C. J.
and Hooke J. that he was not liable to be arrested upon it in
England ; Heath J. dissentiente, on the ground that though a
foreign contract was to be construed according to the law of the
country where it was made, yet the remedies upon it must fol-
low according to the law of the country where the defendant is
sued ; and this doctrine of Heath J. is now confirmed, and the

was decided on ^ase in 1 Bos. & Pull. 455. overruled. 11

the ground of

the recovery abroad being for unliquidated damages, and the affidavit stating it as a judgment

or decree, and the court did not say how it might be in case of a money debt. See the 55 G. 3.

c. 54. §28. as to exemption from arrest of aliens abiding in this country, who quitted their

•country by reason of the revolution or troubles in France.

Davies v. [In an action on a judgment of an inferior court, though bail

A% n^^' ^^^® given in the original action below, yet defendant may be

holden to special bail, because no bail has been given in the

superior court before.]
f^^*^d^^ Rfw Of II But it is otherwise if bail were given before in another supe-
Pnll.4f6. ■ rior court. 11

(o) Bowen v.
Barnett, Ibid.
160.

(A)2Wil3.93.;
but see contr.

Nightingale v.

Nightingale,

,2 Black. R.

4274. Lewis V.

Pottle,

4 Term R. 570

Sellon's Pr.
49.

DeBalfv.
Mackensie,
2 Stra. 1243.

Melan v. Duke
de Fitzjames,

1 Bos. & Pull.
J 38. 2 East,
455. De la
Vega V. Vi-
anna, 1 Barn.
& Adol.284.
The case
supra, in

2 Stra. 1243.

Pull.416.

Collins v.
Powell,
2TcrniR.758.
||Daniel v.
Dodd, 8 East,
R. 335.11

[Where a cause in which the defendant has been arrested is
referred to arbitration, and the arbitrator awards to the plaintiff
a sum exceeding' 10/. jjnow 20/. || the defendant may be arrested
again in an action upon the award.]

4. Whether Bail be required in Actions on Penal Statutes.

YelT.53. On a penal statute the defendant is not holden to bail, because

a Brownl. 993. the penalty on a statute is in the nature of ixjine or amercement

^set

(B) In what Cases Special or Common Bail is required. 457

set on the party for an offence committec# and therefore no per- Comyns, 75.
son ought to suffer any inconvenience by reason of such law, till ^^^^
he is convicted of the offence. qjjj^ HUrCP

37. [Several modern statutes expressly require bail. 5 Burr. 1569. 1 Term R. 705.] [And
where an action is brought on a remedial statute, as on the statute of 9 Ann. c. 14., by the
loser for money won at play, the defendant may be holdcn to bail. Turner v. Warren, 2 Stra.
1079. Andr. 70. S. C] ||So also on the stat. 4G. 2. c. 28. for double value of lands hdd
over. Wheeler v. Copeland, 5 Term R. 364.||

5. Of Persons 'who are not required to put in Special Bail.

An heir, executor, or administrator (a), shall not be holden to 2 Brownl. 293.
special bail; for the demand is not on the persons, but on the sBulst. sie.
assets of the deceased ; and it would be unreasonable to subject ^^^ v^ though
their persons to an execution for the debt of another. ^vas plaintiff,

and it was pretended he was entitled to have special bail by his privilege- Sid. 62. S. P.
per curiam.

So if there be a judgment against an executor for the debt de Cro. Jac. 35s.
bonis testatoi'is, and for the damages only de bonis propriis, he may j >°'u^^' f ^*
bring error, and have a supersedeas, without giving sureties ac- * '"''•'
cording to 3 Jac. 1. c. 8. ; for though the words of the statute
are general, yet it must be intended where judgment is against
the defendant himself, upon his own bond, or where the judg-
ment is general against the executors ; for it would be unreason-
able they should find sureties to pay the whole out of their own
estate.

Neither is an executor, administrator, or heir, upon the re- |.^^^' ^^^•'
moval of a cause out of an inferior court, obliged to put in bail. 245 Vh '

2 Jones, 82. Salk. 98. pi. 4. S.P. cont. Lit. R. 81.

[If an heir, executor, or administrator, personally promise and Mackenzie v.
undertake, in writing, to pay any debt or legacy, he is liable to Mackenzie,
be arrested upon it.] 716^'^"

So if there be a devastavit suggested (i), which can only be on Lev. 145. Sid.

an action of debt on a judgment, executors and administrators 6^- Salk. 98.

must find special bail. PJ--J' K*) ^"'

^ It should be

an actual devastavit returned by the sheriff, or at least grounded on an affidavit. Duprett v.

Testard, Carth. 264. A mere suggestion of a devastavit is not sufficient. Ibid.] Vide head of

Executors and Administrators.

An attorney or other officer, whose attendance is required Mod. 10.
in the court to which he belongs, shall not be holden to special
bail.

If baron and feme are sued, the husband must put in bail for Vide tit. Baron
both ; but if the husband does not appear upon the arrest, the ''"'^ Feme, and
wife must file common bail before she can be discharged; for p pj-^Vn
otherwise the plaintiff could not proceed to obtain judgment. Cro. Jac.445.*
Stile, 475. Mod.8. 6Mod.l7. Ld. Raym. 73. Salk.115.pl. 4. 2Stra.l272. [Barne8,96. iTerm
R. 486. 1 H. Black. 235. 1 Wils. 264.] I|l Barn. & A. 165.|| [If the coverture be doubtful, or
the defendant have committed any frauu in order to procure credit, she shall not be discharged
upon motion ; but she mustj)lead her coverture, which pica must be in abatement, not in
bar.] IIMilner V. Milnes, 3 Term R. 631. But it may be in bar if the feme was married at
the time the cause of action accrued, or mav be given in evidence on the general issue.
1 Camp. 62. 2 Camp. 1 13.|| [Pearson v. Mary Meadon, 2 Black. R. 903. Partridge v. Clarke,

sTerm R. 194. Holland v. Ereskinc, Barn. 100. 6 Mod. 105. 7 Mod. 10,] And where

one partner must put in bail for another. Mod. 45.

II Though

458 BAIL IN CIVIL CAUSES.

Cooke V. Fry, || Though the debt Ae a liability of the wife before marriage,
165^" I d ^ ^^^® husband has absconded, still the wife, if arrested, is
Robarts v. entitled to discharge.
Mason in C. P., 1 Taunt. 254.

Marshal v "^"^ ^' ^^ ^^^ same though she is living separate from her

Rutton husband, with a separate maintenance.

8 Term R. 545. Wardell v. Gooch, 7 East, 582. Wilson v. Serres, 3 Taunt. 307.

Hookham v. ^^ though she is divorced a mensa et thoro.

Chambers, 3 Bro. & Ring. 92. ; and see 5 Barn. & C. 291.

Marsh V. But if the husband is civilly dead, or has abjured the realm,

2 R '^^p"'ll ^^ '^^ transported for life or term of years, or has not returned to

231. Sparrow England after the period of transportation, or is an alien resident

V. Carruthers, abroad, the wife may be sued and held to bail as a feme sole.

2 Black. R. 1197.

Carrol v. However, if the alien husband has ever lived with his wife

Blencow, jjj ^j^jg country, she cannot be sued alone when he ffoes to the
4Esn. 27. De ^. ^ •" ^

Gaillon V. contment.

L'Aigle, 1 Bos. & Pull. 557. Franks v. De la Pienne, 2 Esp. Ca. 587. Kay v. Same,

3 Canipb. 122.

Pitt V. Thonip- If the feme has wilfully deceived the plaintiff by misrepresent-

^^"'r^ ir^^' in? herself as a feme sole, the courts will leave her to plead
16. LoUms V. ° - M 1- 1 1 1 -c 1 •

Rowed 1 New coverture, and not summarily discharge her ; but ir the misrepre-

R. 54. sentation is undesigned, they will discharge her.

Pritchard v. The drawing or acceptance of a bill, is such a representation

Cowlan, of herself as a feme sole, as induces the court not to discharge

2 Marsh. 40. j^g^. summarily, unless the party suincc knew of her coverture at
Jones V. Lewis, . . p , ' i i -ii *^ °

Ibid. 585. t^^ ^'"^® or taking the bill.

Holloway v. Lee, 2 Moo.R. 211.

Jones V Lewis "^^^ must apply for her discharge on her oivn affidavit of
siiprL; and ' coverture. ||
seeTidd, 195. (9thed.)

Bailey v. Dil- [If a bankrupt, having obtained his certificate, conscientiously
Ion, 2 Burr. promise to pay a debt contracted pre\dously to his bankruptcy,
'^^h th ^® cannot be arrested thereon; for that would be taking ad-

commission vantage of his conscientiousness to use it against conscience, (a)
2 Black. R. 725. Cowp. 824., or certificate, Dougl. 228,, appear to be fraudulent, he may be
arrested. ||(a) This reason is unsatisfactory, and would equally shew it to be unconscientious
to sue upon the new promise. The case in 2 Burr, is, however, confirmed by the case of Peers
V. Gadderer, 1 Barn. & C. 116.; but see Blackbourne v. Ogle, 8 Price, 52S. Hortcn v. Mog-
gridge, 6 Taunt. 564. cont., the court there considering that the cause of action being in the new
promise, arose subsequent to the discharge. By the late Bankrupt Act, 6G. 4. c. 16. § 131.,
the promise must be in writing, signed by the bankrupt, or by some person authorized in
writing by him.||

Turner v. Insolvent debtors and fugitives, discharged under insolvent

Schomberg, acts, cannot be holden to bail upon subsequent promises to pay
2Stra. 1233. debts contracted f)efo?-e the time prescribed by the acts; but they
Kemp " ^ ^^y ^^^ ^G^is contracted afterwards (6), and before they were
3Maule&S. actually discharged.]

595. ace; and see Peers v. Gadderer, 1 Barn. «& C. 116.; but see Horton v. Moggridge,
6 Taunt. 563. cont.\\ (6) Cowp. 527. The sheriff, however, is not bound to take notice of
their privilege, Dougl. 671. Nor do the clauses respecting fugitives extend to persons who
have constantly resided abroad. 1 Wils. 85. ; or who have been abroad, merely in the course
of their trade, and not for the purpose of avoiding their creditors. Say. R. 508.

6. JVhere

(B) In what Cases Special or Common Bail is required. 459

6. Where Special Bail is required on removing a Cause out of an
iiiferior Jurisdiction before Judgment.

Upon the removal of a cause by habeas corpus out of any Salk.98. pi. 4.
inferior court into the courts above, though the sum be under Vide title
10/. (a), the party must file special bail {b\ so that the plaintiff (Courts, and
may not be in a worse condition than he was in the court below ; ^j "/j„ urudic-
and the reason hereof is, that those inferior jurisdictions being {a)Videi9G.3.
confined, they cannot follow the debt out of their own jurisdic- c. 70.
tion ; and therefore it is requisite that they should be bail who »^ ^ ^ 9-. ^' .
live within their precincts, (c) J; iyT^TBut

if the cause appears to be vexatious, the court above will consider the quantum of the sum ia
which bail ought to be taken. Salk. 101. pi. 15. 102. 2 Ld. llaym. 767. 7 Mod. 9, 6 Mod.
24e. S. P. (c) If bail is not in within due time, a procedendo issues, and carries the cause
back to the inferior court.

If a cause be removed by habeas corpm out of the Marshalsea^ Salk. 97. pi. 1.
or any other inferior court, and the bail there offer to be bail to P^^ ■^"'^ ^- ^'
the action in the court above, the plaintiff is compellable to take
them ; because he might, but did not except to them below.

But it is otherwise where the cause comes out o^ London ,- for Comb. 1.
the sufficiency of the bail there is at the peril of the clerk, and Skin. 244,
he is responsible to the plaintiff; so that the plaintiff had not the P'* ^- Salk. 97.
liberty of excepting against them, and the clerk is not respon- ^* V fit\V \
sible for their deficiency in the court above, though he was in &S.328.Tidd'8
London. Prac. 403.

(8th edit.)l|

If a cause is removed out of an inferior court by habeas corpus, Cro. j^c. 363.
and new bail found, and after in the same term it is remanded Beston and
by procedendo, the old bail shall stand ; for when a cause is Buller ad-
remanded the same term in which it was removed, no record is J""sed, and

1 ^ c there said, that

made thereof. Brook. Main-

prize, 96., and Procedendo, 16., is so to be understood. Moor, 856. S. C. adjudged. 2 Bulst.
286, 287. S.C. adjudged. Roll. R. 64. S. C. adjudged, notwithstanding the old bail was dis-
charged, and new put in; the new bail being taken off the file and made void the same term,
while the record was in the breast and power of the court. Vide Cro. Jac.203. and Yelv. 120.
adjudged conf. But per curiam, it is there said, if the procedendo were delivered, &c. before
bail given to the superior court, it should be a supersedeas to the habeas corpus, and the old
bail should stand.

Otherwise where it is remanded in another term. C^o. Jac. 365.

Moor, 836. pi. 1128. Roll. R. 64. 2 Biilst. 286. S. C. and S. P. p^r cur., and Skin. 244. pi. 9.
S. P., where it seems agreed generally, that upon such removal the bail below are discharged,
for they declare de novo.

But where a replevin by plaint was sued in the sheriffs court Skin. 244.
of London, and pledges were found de retorno habend. si, &c., ?'• ^' ^'^.f'!'"^"
and this plaint was removed according to their custom into the adjudged,
mayor's court, and after into the King's Bench by certioiari ; and 2 Show. 421.
there oyer of the certiorari being demanded, the party declared f 85. S. C. ad-
in B, It., and upon this a return awarded ; and upon an elongat. J""8ed. Mulso
returned a scire facias went against the pledges in the sheriflf's Fortesc.*330.
court of London : the question was, whether this cause being S. P.
removed by certiorari, the pledges in the inferior court were
discharged ? and it was held that they were not.

[By Stat. 19 G. 3. c. 70. § 6. no cause under* 10/. shall be re- 19 G. 3. c. 70.
moved into any superior court, unless the defendant wlio shall ^ ®*

4-00 BAIL IN CIVIL CAUSES.

be desirous of removing it, shall enter into a recognizance with

two sufficient sureties, for payment of debt and costs, in case

judgment shall pass against him.]
7 & 8 G 4. ||By 7 & 8 G. 4. c. 71. all the provisions of 19 G. 3. c. 70. § 6.

c. 71. are extended to actions in inferior courts, under 20/. and all

acts authorizing arrest in such courts for causes under 20/., are

repealed. II

7. Of 'putting in Bail on bringing a Writ of Error.

J 1 c 8 ^y ^^® ^ ^^^' ^' ^' ^' ('^^ ^^ ^^ enacted, " that no execution

(a) Made per- " shall be stayed or delayed, upon or by any writ of error, or

petual by " supersedeas thereupon, to be sued for the reversal of any judg-

3 Car. 1 . c. 4. « ment given, or to be given, in any action or bill of debt, upon

15 cT 2 ^ " ^"y single bond for debt, or upon any obligation with condi-

st. 2. c. 2* " tion for the payment of money only {b\ or upon any action or

par. 9. enacts " bill of debt tor rent, or upon any contract sued in any of the

m like manner, a courts of Westminster {c), counties palatine, or great sessions in

cuUon^shalTbe " ^^^^^^ ' unless such person or persons in whose name or names

stayed after " such writ shall be brought, with two sufficient sureties, such

verdict and " as the court (wherein such judgment is or shall be given) shall

judgment in « allow of, shall first, before such stay made, or supersedeas

setting out " awarded, be bound unto the party for whom any such judg-

tithes, actions " ment is or shall be given, by recognizance, to be acknowledged

on the case on " in the same court, in double the sum adjudged to be recovered

any promise « jjy jj^g g^id former judgment {d\ to prosecute the said writ of

oTmoneT" " error with effect; and also to satisfy and pay (if the said judg-

trover, cove- " ment be affirmed) all and singular the debts, damages, and

nant, detinue, « costs adjudged, or to be adjudged upon the former judgment ;

and trespass.* « q^^^ q[\ costs and damages to be also awarded for the same

The 16& 17 ££ 1 1 • n ^' „ ^

Car 2. c 8. delaying or execution.

1)ar. 3. extends to writs of error on judgments after verdict in dower and ejectment.
lSeelG.4. C.87. §S.|| Carth. 121. 3Lev.275. [(A) The 19G.3. c. 70. §5. enacts, that
no writ of error shall be brought on any judgment in any inferior court of record where
the damages are under 10/., unless the party bringing it shall be first bound with two sufficient
sureties (such as the court wherein such judgment is given shall allow of) unto the party for
whom such judgment is given in double the sum adjudged by the former judgment, to prose-
cute the said writ of error with effect; and also to satisfy and pay, if the said judgment be
affirmed, or writ of error he non-pros' d, all and singular the debt, damages, and costs adjudge J,
and all the costs and charges awarded for the delay of execution.] ||And by 7 & 8 G. 4. c. 71.
§ 6. the provisions of this statute ai'e extended to all actions in inferior courts for causes of
action under 20/. exclusive of costs. The expression " causes of action," removes the doubt a»
to the word "damages" in the former statute. 2 Saund. 101. i.|| (c)[A bond given by a third per-
son as a security for the payment of a sum of money by instalments, is a bond conditioned for
the payment of money only within this act. Chauvet v. Alfray, 2 Burr. 746. So a bond con-
ditioned for the payment of money according to the true intent and meaning of an indenture,
or for the payment of money at such a day, being the same sum mentioned in a certain inden-
ture, is a bond within this act. Littleton v. Hanson, Barnes, 98. Desbordes v. Horsey, 2 Stra.
959. But a bond conditioned for the performance of covenants in an indenture, in which
there are other covenants besides that for the payment of money, is not within the act. Ger-
rard v. Danby, Carth. 28. Show. 14. S.C. Comb. 105. S. C. A bottomry bond, after the
contingency hath happened, is in every respect a bond for the payment of money only. Pitt
v. Coney, Stra. 476. A bond to pay so much money as J. S. shall declare to be due oa

account

' * This statute docs not extend to judgment by default in any of the actions specified, nor
doth cither of the others. jjDut the 6 G. 4. c. 96. supra, extends to all judgments. ||

(B) In what Cases Special or Common Bail is required. 461

account, is within the act ; for though the sum be uncertain at the time when the bond was
entered into, it is ascertained at the time of bringing the action. Dean and Chapter of St.
Paul V. Capell, 1 Lev. 117. 1 Keb. 613. 690. S. C. But a bond to pay for so much beer as shall
be delivered to J. 5., not exceeding lOO/. is not so, for here the sum is uncertain, and rests
upon a quantum meruit. Thrale v. Vaughan, 2 Stra. 1190. Where a defendant had confessed
judgment in an action upon a bond conditioned for pa)'ment of money only, and afterwards
debt was brought upon that judgment, and judgment obtained thereon, it was ruled that, in
a writ of error upon this second judgment, bail was not requisite ; that this was casus oviissus
out of the act, which was to be taken literally, and not extended by construction. Bidleson v.
Whytel, sBurr. 1545. 1 Black. R, 506. S.C. So it seemeth that bail is not requisite on a
writ of error in parliament upon a judgment in B. R. in an action of debt on a recognizance
in error. Trinder v. Watson, 3 Burr. 156G. See the case of Christy v. Manucaptors of
Anstruther, 8 Mod. 2.37.] (c) On this statute it hath been adjudged, that judgment on an
hisimvl computasset was not an action founded on such a contract as comes within it.
2 Bulst. 5o. Yelv. 227. So of a debt due by arbitration. Ibid, per cur. ||See the cases
on the statutes collected, Petersdorf on Bail, 454. But it is needless to pursue them,
since the 6 G. 4. c. 96. has rendered bail in error necessary in all judgments in personal
actions.|| [(d) In error on a judgment upon debt on bond, the bail need be bound only in the
sum recovei'ed, for that is double the sum due. Moor v. Lynch, 1 Wils. 213. It is obvious
from the nature of this recognizance, that the bail in error have not the alternative of sur-
rendering the principal; and therefore though the principal become a bankrupt, and be dis-
charged by his bankruptcy, yet the plaintiff may have recourse to them. Southcote v.
Braithwaite, 1 Term R. 624.] [jAnd so also, though the principal be taken on a ca. sa. and in
custody, the bail may be proceeded against on their recognizance. Perkins v. Petit, 2 Bos. &
Pull. 440. And if the plaintiff in error nonpros his own writ of error, the recognizance will
be forfeited. Dickenson v. Heseltine, 2 Maule & S. 210.||

II And iww by 6 G. 4-. c. 96. intituled " An act for preventing 6 G. 4. c.96.
frivolous writs of error," it is enacted, that on am/ judgment
hereafter to be given in any of the said courts in ayiy pei'sonal
action, execution shall not be stayed or delayed by writ of
error or supersedeas thereupon, without the special order of the
court or some judge, unless a recognizance with condition,
according to the statute 3 Jac. 1 . c. 8. be first acknowledged
in the same court.

It is settled that the statutes as to bail in error, only apply to Baring v.
writs of error brought by defendants below, and not to error Christie,
brought by a plaintift* below on a judgment for the defendant. ^ ^,^^' ^X^\\
A person who is plaintiff both below and above need not give ^" v^DiaT
bailinerror.il loEast, 2.'

iDow. &Ry. 184.

If A. becomes bail for B. in an inferior court (a), and there Cro. Jac. 94.
judgment is given for B.. and thereupon the plaintiflf brinffs a per cur. {a) A.

•r r 1 i-i i • 1 *. • 1 1-1 . • became bail

writ of error, and that judgment is reversed, and judgment given f^^ ^ j„ jj,g

for the plaintiff against i?., the bail is liable ; for when the first Portmote

judgment is reversed, it is as if that judgment had never been, court of the

and as if at the first the principal had been condemned in the '^^^y^i Chester,

• c ' L. and judgment

inferior court. wasthefe

given for B., and upon a writ of error before the justices of the great sessions of the county of
Chester, that judgment was reversed ; and afber, upon a writ of error in B- R. both judgments
were reversed ; and it was adjudged, that the plaintiff should recover 50/. damages, &c., audit
was urged, that A. was not liable ; for by the reversal there is no judgment in the inferior
court against B., and took a difference where the judgment of the inferior court is affirmed,
and where reversed. 2 Jones, 96. adjomatur.

If A. brings a writ of error upon a judgment obtained against Cro. Jac. 402.
him, and according to the 3 Jac. 1. c. 8., B. enters into a recog- yi'**?" ^"^'^
nizance, conditioned that A. shall prosecute his writ of error jud"edwlthout
with effect, and if judgment shall be affirmed that he shall pay argument.

the

46^ BAIL IN CIVIL CAUSES.

Moor, 85". the condemnation, 4'<^. after the judgment is affirmed, J3. cannot

pi. 1165. S.C. i-ender A. the principal, for this manucaption is not to render the

and S. p. ad- . i u * * ^u j Li.

judged per »ody but to pay the debt.

iotmn curiam. It is now the known and established doctrine.

Roll. Abr. 335. If judgment be affirmed upon a writ of error in the Exchequer-
Cro. Jac. 636. chamber (a), no execution shall go against the bail in the original
S. P. adjudged, action for the costs occasione dilationis executionis, and the party
r ^'pr* eo7 might have compelled the defendant in error to put in bail,
(a) In a scire ' pursuant to the statute S Jac. 1. c. 8.

facias upon a recognizance against bail, the defendant pleaded a writ of error brought by the
principal ; and per cur. — This is no plea, for the writ of error upon the principal judgment doth
not affect the recognizance. But per Holt C. J. — I have known an attachment against a town-
clerk for proceeding in an inferior court after a writ of error here ; but I never took it to be
right. Comb. 295.*

* Where error is brought, the court, on motion, will stay proceedings agmnst the bail, on
terms, according to the nature of the case; i.e. if they are in time to surrender the principal,
on engaging to pay debt and costs, or surrender within a specific time after affirmance. If
too late to surrender, then on engaging to pay debt and costs within a limited time after
affirmance, if the judgment shall be affirmed. IJAnd the costs of the writ of error, where there
are no bail in error. Buchanan v. Alders, 3 East, 546. Copous v. Blyton, iNewR. 67.
Sprang v. Monprivatt, 1 1 East, 316. Kershaw v. Cartwright, 5 Burr. R. 2819.11

Salk 97 pi. 2. ^^^ ^^^^ ^^ ^ bond in C. B. and judgment for the plaintiff,

Tully and error was brought in B. M., and bail put in according to the

Richardson. statute, and judgment affirmed thereupon, error was brought

2 Ld. R^y™' in parliament (Z>), and the clerk of the errors refused to allow

120. 8 Mod*. ^^^^ writ, unless the party would give a new recognizance. It

79. (b) Vide was objected, that it was not required by 3 Jac. ]. c. 8. But

sBulst. 162. ■per cur. — The first recognizance does not include payment of

That one m costs to be assessed in the House of Lords, and these costs

not to be ought to be paid, and therefore a new recognizance ought to be

bailed on given within the intent of the statute ; and it is not the business

bringing a writ of this court to examine whether bail was put in upon the first

of error m par- ^j.jj. f^^, ^^le want of that does not hinder the process of the writ

liament, be- r- i ^ i i -^ j

cause of the ^* error, but only makes it no supersedeas.

uncertainty how long the parliament may continue.

Cro. Jrvc. 108. If there is a judgment in B. jK., and the defendant is taken in
Cro. Ehz.751. execution, and after brings error in the Exchequer-chamber, and
B R. every ° ^^^ record is removed, he cannot be bailed in B. R. (c), because
attorney who there is no record there ; nor can he be bailed in the Exchequer-
shall sue out chamber, for they have authority only to affirm or reverse the
any writ of judgment,
error on any •' °

judgment of this court, returnable in the Exchequer-chamber, shall forthwith allow such writ
of error with the clerk of the errors of this court for the time being ; and in case where spe-
cial bail shall be required, if the plaintiff upon such writ of error do not, within four days after
allowance thereof, put in special bail thereon, the plaintiff in the action may proceed to take
out execution notwithstanding such writ of error ; and where special bail is put in, the plain-
tiff or his attorney must forthwith give notice thereof to the defendant in error, or his
attorney; and if the defendant in error do not except against such bail within twenty days after
such notice given, such bail shall be allowed. By a rule in C. B., Mich. 6 G. 2., in all cases
where bail shall be filed on writs of error, such bail shall be perfected within four days after
exception taken thereto ; or in default thereof the clerk of the errors of this court shall non-
pros such writ of error.*

* The allowance of a writ of error before execution, is of itself a supersedeas to exe-
cution ; and I conceive the court would set aside the execution, if executed after allowance ot

a writ

(B) In what Cases Special or Common Bail is required, 463

a writ of error, though there was not any notice given. The intent of notice is, to subject the
attorney for the defendant in error to an attachment, if he sliould dare, after notice, to levy an
execution.

Upon a writ of error of a judgment in Ireland, the record Palm. 286.
being removed in B. R., the court took bail here, and sent H '^^ ^"'^ of
directions to have the defendant set at liberty there. ^^^ j^°^ ^^^

land to the K. B. in England is abolished. 23 G- 5. c. 28. § 2.|1

II The words "'with sureties" in the 3 Jac. 1. c.8. are con- Dixon v,
strued to mean bt/ sureties ; and therefore the plaintiff in error P' p*"?? ^ ^°^-
need not join in the recognizance. " ' "''

A recognizance of bail in error for less than double the Read v.
amount, does not operate as a supersedeas ; and the court will Cooper,
not permit the bail-piece to be amended by enlarging the pe- p. .!l""'^-"2°*
nalty in order to defeat an execution sued out. Browne

Chitt. R. 105. ; and see Petersdorf on Bail, 462.

In ejectment, the plaintiff in error may enter into the recog- Keene v.
nizance himself, pursuant to 16 & 17 Car. 2. c.8. §3.; or, ^$f''''°"'
according to a reasonable construction of the act, he may pro- Barnes "103
cure two responsible persons to become bail for him. And the 7 Taunt. 427.
sum is in K. B. generally double the improved rent, and the As to putting
single costs of the ejectment ; but in C. P. the recognizance is !" ^"^1 j^stify-
taken in two years' rent or profits, and double costs. g^^^^ g^g Pg_

tersdorf on Bail, 464., and the cases there collected.

Bail in error in ejectment are not chargeable with mesne Doe v. Rey-
profits, unless the amount has first been ascertained on a writ of ^°g 047 ^"'^
enquiry pursuant to the 1 6 & 1 7 Car. 2. c. 1 . § 4. 1|

8. Common Bail, in 'what Cases necessary.

The filing of common bail is necessary, that it may appear „
that the court had conusance of the cause. want^ofTt^'

error, vide title Error, and Hob. 264.

[Common bail in K. B. is entered on a piece of parchment,
called a bail-piece, with a triple sixpenny stamp, and filed with
the clerk of the common bails ; who, by a rule of Easter, 30 G. 3.
3 Term R. 660., is to mark the bail-pieces numerically as they
are received.]

If a prisoner be discharged for want of being declared against vide Salk. 98.
within two terms (a), or upon nonprossing the plaintiff, or if he pi. 5. and the
surrender himself in discharge of his bail, and is not charged ^^h^ ^ ^ ^'
within two terms ; in all these cases he must file common bail, ii'i'ijj's Prac
that it may appear by the acts of the court that he was actually 573. (sth ed.)||
in court when discharged. («) Formerly

three terms. Cro. Jac. 620.

By the rules of B. R. no attorney shall be compelled to appear P'.^vlf e^".
or file common bail for any defendant, unless sucn attorney hath ^ ff the ^
by a note in writing under his hand undertaken so to do [b\ and court, on mo-
such note produced by the plaintiff''s attorney; but if any attor- tion, will not
ney hath accepted a warrant to appear for the defendant, (which <-'o'"pel an ap-
warrant be in nowise revoked,) or hath subscribed the same, and Z^^q\ under-**
do not cause bail to be filed accordingly, such attorney shall be taking, unless

compelled

46* BAIL IN CIVIL CAUSES.

in particular compelled to file common bail of the proper term (<:), and take a
cases ? declaration and plead to the same ; or, in default of pleading,

ll^^hit.R^e.ll judgment may he entered by default, if rules for pleading have
114 ace. ' ^^^^ S'v^" ; ^o'' t*iat the default of the defendant or his attorney
(c) By the shall not tend to the plaintiff's prejudice.

5 W. & M. c. 21, § 3. the defendant shall cause an appearance or common bail to be entered
or filed within eight days after the return of the process, or penalty of 5l. to be paid to the
plaintiff^ for which the court shall immediately award judgment, and the plaintiff may take out
execution. 5 Mod. 392. 2 Stra. 737.

12 G. 1. c. 29. [Before the statute of 12 G. 1. c. 29. common bail could only
But common have been filed, or a common appearance entered by the defend-
bail thus filed ant, or his attorney. But now, by that statute, as altered by
' ener m ^ 5 G. 2. c. 27., " if the defendant, having been served with pro-
in„ tjjg jg_ " cess, shall not appear at the return thereof, or within eight
fendant into " days after such return, the plaintiff, upon affidavit of the ser-
court as to «« vice of such process, made before a judge, or commissioner of
warrant deli- ^ « ^^^ court for taking affidavits, or before the proper officer for
ration by the " entering common appearances, or his deputy, (which affidavit
bye; and " shall be filed gratis,) may enter a common appearance, or file

therefore to « common bail for the defendant ; and proceed thereon, as if

prevent mis- « ^^^^ defendant had entered his appearance, or filed common
taKes, tnese ^^ , , „
words are uaii. j

written on the bail-piece, " filed according to the statute." 2 Stra. 1027. Cas.temp. Hardw.
207. Bail filed under this act must be filed of the term in which the writ is returnable ; if of a
subsequent term, the cause is out of court. Edgar v. Farmer, Ca. temp. Hardw. 138. Smith v.
Painter, 2 Term R. 719. Common bail may be filed, or a common appearance entered, l)y the
plaintiff''s attorney, without his entering or filing of record a memorandum, or minute of his
warrant, pursuant to the 25 G.3. c. 80. § 22. But the defendant's attorney must not plead
or carry on any further proceedings in the action until such memorandum or minute shall have
been delivered to the proper officer to be entered or filed of record according to the direc-
tions of the 23d section of that act. HTidd's Prac. 243. (8th edit.)||

7 &G.4. c.71. II And now, by the statute 7 & 8 G. 4. c. 71. §5. reciting that
^ ^' the provisions of the said acts authorizing plaintiffs in default of

appearance of defendants to enter a common appearance or file
common bail as therein directed, are not deemed to extend to
proceedings by original and other writs, whereupon no capias is
issued, and that it is expedient to extend the provisions of the
said former acts to such proceedings, it is enacted, that in all
cases where the plaintiff or plaintiffs shall proceed by original or
other- writ, and summons or attachment thereupon, or by subpoena
and attachment thereupon, in any action at law against any per-
son or persons not having privilege of parliament, no writ of dis-
tringas shall issue, for default of appearance, but the defendant
or defendants shall be served personally with the summons or
attachment, at the foot of which shall be written a notice,
informing the defendant or defendants of the intent and meaning
of such service, to the effect following : —

" C. D. [naming the defendant^ you are served with this
" process at the suit of A. B., [naming the plaintiff or plaintiffs,']
*' to the intent that you may appear by your attorney in his

" majesty's court of , at Westmi?ister, at the return

" hereof, being the — — day of , in order to your

*' defence

(B) In what Cases Special or Common Bail is required, 465

" defence in this action : and take notice, that in default of your
" appearance, the said A. B. will cause an appearance to be
" entered for you, and proceed thereon as if you had yourself
" appeared by your attorney." But in case it shall be made to
appear to the satisfaction of the court, or, in the vacation, of any
judge of the court from which such process shall issue, or into
which the same shall be returnable, that the defendant or de-
fendants could not be personally served with such summons or
attachment, and that such process had been duly executed at the
dwelling-house or place of abode of such defendant or defend-
ants, that then it shall and may be lawful for the plaintiff or
plaintiffs, by leave of the court, or order of such judge as afore-
said, to sue out a writ of distringas to compel the appearance of
such defendant or defendants, and that at the time of the ex-
ecution of such writ of distringas, there shall be served on the
defendant or defendants, by the officer executing such Avrit, if
he, she, or they can be met with ; or if he, she, or they cannot
then be met with, there shall be left at his, her, or their dwelling-
liouse, or other place where such distringas shall be executed, a
written notice, in the following form : —

" In the court of , [specifying the court in 'izhich

*' the cause shall be dependiTig,"] between A. B. plaintiff", and
" C. D. [naming the partiesJ] Take notice, that I have this day
" distrained upon your goods and chattels, for the sum of forty
" shillings, in consequence of your not having appeared by your

" attorney in the said court at the return of a writ of ,

" returnable there on the day of ; and that in

" default of your appearing to the present writ of distringas, at

*' the return thereof, being the day of , the said

" A. B. will cause an appearance to be entered for you, and pro-
" ceed thereon as if you had yourself appeared by your attorney.
" E. F. [the name of the sheriff's officei:'^^

** To C. D., [the abffoe-named defendant."^*

And if such defendant or defendants shall not appear at the
return of such original or other writ, or of such distringas, as
the case may be, or within eight days after the return thereof,
in such case it shall and may be lawful to and for the plaintiff"
or plaintifi^s, upon affidavit being made, and filed in the proper
court, of the personal service of such summons or attachment,
and notice written on the foot thereof as aforesaid, or of the due
execution of such distringas, and of the service of such notice,
as is thereby directed on the execution of such distringas, as the
case may be, to enter a common appearance for the defendant or
defendants, and to proceed thereon as if such defendant or de-
fendants had entered his, her, or their appearance, any law or
usage to the contrary notwithstanding; and that such affidavit or g^^ 'puj ,,4
affidavits may be made before any judge or commissioner of (atlicd.)
the court out of or into which such writs shall issue or be return-
able, authorized to take affidavits in such court, or else before
the proper officer for entering common appearances in such
court, or his lawful deputy; and which affidavit is thereby di-
rected to be filed gratis. |1

Vol. I. H h In

466 BAIL IN CIVIL CAUSES.

Salk.99. pl.8. ^'^ ^" action upon a recognizance of bail, or upon a bail or*]
Carth. 519. replevin bond, common bail only shall be filed.

Holt, 127. pi. 1 . 12 Mod. ,320. 580. R. M. 8 Ann.

2 Show. 249. A judgment in ejectment against the casual ejector is erro-

p. 25.;.., ami neous, unless a latitat was sued out, and common bail filed for

such a jucl<j- 1 • / \ •

ment actually """• V^)

set aside, (a) This is not now law. If judgment goes against the casual ejector there is not

any defendant in court to bring error. If the tenant or landlord appears, he enters into the

common rule to confess lease, entry, and ouster, and instantly pleads the general issue. 'J'he

declaration in ejectments is in the nature of process only. ||Adams on Ejectment, 221. ||

M^^^'V^^"^ [It is necessary to authorize judgments by warrant of at-
& M ' ' * '^^'"^y> default, or non sum informatus.']

and herein,

1. Of the Manna' of ■putting in, excepting to, and justifying Bail.

Salk. 98. Ti^ ^^ printed rules of the courts, every attorney who shall

6 Mod. 24, 25. appear for any defendant in any action in which special bail

]ib) Vide supra, is not required, shall duly file common bail for such defendant,
of b- '\d^h^ ^^ ^^ term of which he appears [l)\ and give notice thereof to
esse is thus re- ^^ plaintiff or his attorney ; and where special is required and
lated by Glynn put in he bene esse (c), before any judge or commissioner on a cepi
C.J. "A hi- corpus, the defendant's attorney shall forthwith give notice (d)
he *m' *^ff^ thereof in writing to the plaintiff or his attorney, and of the
" arrested a names of such bail, with their additions and places of habitation :
" man for a and if no exception be taken to such bail, and entered in the
" '''iJ'ge debt, judge's book within twenty days after such notice (c), then upon
" ^^.|*^" J ^ oath thereof made, for which no fee is to be taken, such bail
" tice Rich- ^^^^^ ^^ ^^^^ ' ^"^ ^^ special bail shall be put in before any judge
" ardson, who de bene esse, on any writ of habeas cojpiis or certiorari, and no
1^ took it in rule for better bail, or exception taken, or entered in the judge'."-
" and^tr^b^'l' ^°°^> against the bail so put in, within twenty-eight days after
" being insuf- Pitting in such bail, then such bail shall be filed by the defend-
" ficient, the ant's attorney after the end of the said twenty-eight days.
" bishop represented the matter to parliament, and prayed their remedy for it ; upoji
" which it was enacted, that no bail taken before a judge in his chamber should bind
" the phiintifF without his assent thereto, or the confirmation of such bail taken, by all the
" court." 2 Sid. 91. R. M. 1654. § 7, 8. {d) The notice of bail is, cither that they are put
in, or, if taken before a commissioner, that the bail-piece is filedy with an affidavit of the due
taking thereof, at a judge's chambers. Imp. 124. The notice in either case should be pro-
perly entitled. Lofft. 237. The parish, or town wherein they live, without the street, or
other certain place of their residence, is too vague a description. Id. 72. 194. Per cur. M.
25 G. 3. If the bail above are the same persons who were bail to the sheriff, it is usually so
expressed in the notice. Imp. 1 18.] jjAs to the requisites of the notice, see Petersdorf, 294.
Tidd's Prac 265., (8th edit.)|| {e) At the expiration of twenty days, without any exception, the
bail is filed in court : but if the defendant except and give notice thereof, the defendant s
attorney must bring up the bail-piece, and the bail must justify in court; and note. That in the
Connnon Pleas the bail-piece remains with the filazer till the twenty days are expired ; but in
the King's Bench it is left with the judge, because judges of that court determine all matters
relating to their prisoners. And for the difference of the manner of taking bail, and the i'orwx
of the recognizance in each court, vide Cro. Jac. 449. 645. Cro. Car. 481. 2 Bulstr. 23-'.
Roll. Rep. 587. 2 Show. 535. 2 Salk. 564. The like time to except where the plaintiff pu's
in bail upon bringing a writ of error. Salk. 98. [No notice necessary in C. P. if bail put ».!,
172 due time; otherwise it is so. Dawkins v. Reid, 1 H. Black. R. 529.] [[But now by Rule I;.
49 G. 3. C. P. 1 Taunt. 616. notice is nccessarv.ll

[Wlieii

[When the bail already put in do not mean to justify, others Tidd's Prac.

Iiould be added^ before a judge, on the bail-piece by bill, or in 264.(8thed.)

iie filazer's book by original^ within the time allowed for their {jj'^'k R291 *

stification : and if there be not time enough, the defendant's Say. R. 58.

torney may take out a summons, and obtain an order for fur- 1 Wils. 337.

»er time ; and they must actually become bail before the notice ?;^'- ^rp^'^^'p

'justification is given. When other bail are added, the court g^-* j piack. *

ill order the names of those who were excepted to, and did not R. 4G2. 4 Burr

istify, to be struck out of the bail-piece. But until this be 2107.

one, they are liable to be proceeded against, and may also sur-

ender the principal. And if it be not done till after proceed-

igs have been had against them, they must pay the costs of such

roceedings.

The bail justify either in jDf'rso?^, or hy affidavit. If they live 6 Mod. 24.

n London or Westminster, they must justify in person, and in 2 Black. R.

fen court, [jnow in the Bail Court, pursuant to 57 G, 3. c. U.H gxy '- u „ ,

mless the plaintiff consent to their justifying before a judge at 5, r.e. °

liis chambers. If they live at a greater distance, they may be 5G.2. Reg. 1.;

ustified, without their personal attendance, by affidavit duly INnd see, as to

:aken before a commissioner. In both cases, they must swear PPP."''!"S ^".^
11 1 1 1 -iiiiii justifying bail,

inat tney are housekeepers, and respectively worth double tlie 'fidd's prac.

5um sworn to, after all their debts are paid. 256., et seq.

(9tli edit.) Petersdorf, 326.\\

The notice of justification should set forth, that the bail already Imp. 124.
put in will, on a certain day, justify themselves in open court,
or that others will be added, and justify themselves, as good bail
for the defendant. And if the bail were put in before a com- ^d- ^i^*
missioner, the notice should express that they will justify them-
selves by affidavit.

Notice of justification by three bail has been holden good : ||in Imp.
the K. B. but it is otherwise in C. B.|| but notice that A., B., and Lofft.26.Tidd,
C, or^TOOofthem, will justify, is irregular. 266. (9th cd.)

Where the bail already put in intend to justify, ojie day's pre- Imp. 119.
vious notice of justification, or notice for the next day, is deemed
sufficient ; unless Stmday intervene, and then notice must be
given on Saturday for Monday. But where other bail are added Ibid. per cur.
to those already put in, there must be two days' previous notice M. 21G. 3.
of justification ; one inclusive^ and the other excltisive, as Monday
for Wednesday, S^c. And Sunday is not reckoned as a day for q? Sverton'r°
this purpose ; therefore notice of added bail on Satwday for bail, M.
Mo?iday is not sufficient. 26 G. 3.

Bail may be put in on a dies nan juridicus. Baddcley v.

Adams, 5 Term R. 1 lo.

One ground of opposing bail is, some defect in the form, or y^^j^, suprii.
irregularity in the service of the notice of justification. ||Tidd's Prac.

265, 266. (9th cdit.)I|

Another ground is, that they have assumed names that are iStra.384.
either feigned, or belong to other persons. If they assume Andbystat.2i
feigned names, the court will order them, and the attorney, to i* Jfany^' ^^*
be set on the pillory. « ^^n shall a'c-

" knowledge or procure to be acknowledged, any recognizance of bail, in the name of another
" person not privy or consenting to the same ;" or (by stat. 4 & 5 W. & M. c. 4. $ 4.) before a.

J^ |j 2 " commissioner

468 BAIL IN CIVIL CAUSES.

" commissioner shall represent or personate another person, whereby he may be liable to : he
" payment of any debt or damages, he shall, on conviction, siiiFer death as a felon, withdut
" benefit of clergy." ||27 G. 3. c. 43. extends these provisions to taking bail in Chcsier.\\ liu
'he court will not vacate the proceedings against the party personated until the offender b
convicted. 1 Ld. Raym. 475. Nor can a conviction take place until the bail-piece be fili.'d
2 Sid. 90. ||And the mere personating bail before a judge in chambers, which is not filed o
record, appears only a misdemeanor. 1 Hale, 696. 1|

Loffl. 148. Id' A third ground is, that they are not housekeepers : but if tho]
328. ||See are, the rent of their houses is immaterial, tiiough under tJiJi
^ ?,^'"n^M^ pounds : nor is it necessary that they should have been assessa
529'. 2 Pricets'. to the poor's rate.
Tidd's Prac, 268. (9th edit.)||

Tidd's Prac. A fourth ground is, that they are not worth double tlie sun

|269.(9thed.)|| sworn to, after payment of all their debts. Under this heiU
Wilkins m' "^^X ^® ranked bankrupts who have not obtained their certifi
2iG.5.*M.?6 cates ; or such as have been twice bankrupts, and not pai(
G.3. Loffl. 72. fifteen shillings in the pound. And bail have been rejected
194. 5 Black. yfi^Q (jjjj j^Qj. know the defendant; or had been bail before, bu
Crowbar 146 ^^^ ^^^ know in how many actions, or for what sums. But i
JlaChitt.R.so. seems, that the circumstance of not knowing the defendant^
9.5. 1 Chitt.R. being only a mark of suspicion, may be explained away. Thtii
375.|| living within the verge of the court is an objection, but not

sufficient without other suspicious circumstances. If they for
swear themselves, they are liable to the punishment of wilful and
corrupt perjury.

4 Burr. 2526. Fifthly, Foreigners are not admitted to be bail, merely in
Lofft. 34. 147. respect of property abroad, which is not liable to the process ol
1 Black. R. our courts. Though it has been said, that merely having no
Vri ' •k"R *^^ property in England, is not of itself a sufficient objection, without
1523. * other auxiliary circumstances.
iJsTaunt. 148. 4Maule&S.173.37l. 1 Chitt.R. 285. n.||

K.B.R. M. Sixthly, No attorney, or his clerk, can be bail: neither cat

1654. J. 1. any. sheriff's officer, or person concerned in the execution ol
D I 1 466 ^ process, keeper of the Paidti-y Compter, or Marshalsea Court
iH. Black.* R. officers.

76. Tidd's Prac. 140, 141. jlPetersdorf on Bail, 271, 272.|| But if a person who, by thi
rules of the court, is not permitted to become bail, be put into the bail-piece, and not except et
to, the plaintiff cannot take an assignment of the bail-bond, and proceed upon it, as if no bai
had been put in. Thomson v. Roubell, ^. iZ., E. 22 G. 3. cited in Dougl.466. ||And th<
exclusion is confined to attorneys who practise. Anon. 1 Chitt. R. 714.; and see Petersdorf
270.||

4 Term R. Seventhly, Persons outlawed after judgment, or convicted o

^'^^' perjury, cannot be bail.

jDow.&Ry. II Servants of the king, peers of the realm, members of tiic
^^0-9 '^^' House of Commons, officers of the courts of justice, person.'
4 Taunt. 228. living within the verge of the palace, being respectively exempt

from the ordinary process of the law, are not competent to justify

as bail. II
if^^'l'* ^H Lastly, The court will not permit a justification of bail, after

||ci2.(9thed.)ll ji^g expiration of the rule to bring in the body.
R. 3&4G. 2. If special bail put in by defendant be excepted to, the de-
C.B. Barnes, fendant shall perfect his bail within four days after such excep-

tioi

tion taken, in default whereof the plaintiff may proceed upon the '^'*- 82- JlTidd,

bail-bond. In B. 2?., if notice of exception is in term, bail must ^^^' ^'^^^ ^'^'^^

justify in four days, or add others that will justify. If exception

and notice be in vacation, justification to be the first day of next

term. E. 5 G. 2. If notice of exception in vacation, justification

to be on first day of term, as in B. 11. [Of the four days allowed

to perfect bail after exception, the first is reckoned exclusively,

and the last inclusively. So that where the exception was on a 2 H. Black. R.

Wednesday^ an attachment against the sheriff could not regularly 55. H&rf vide

issue till the Tuesday following {Sunday being no day). But ].^^^^' ^^^'

though the attachment did issue on the Monday^ the court would

not set it aside, because the bail were not perfected.

Where the bail do not attend, or are not permitted to justify Loffl. 72. 187.
on account of a defect in the notice of bail, or justification, the ^^^"^^.^:,^_^'
court will, in general, allow them further time to justify. But p^^g 272
where they are rejected on account of some personal insufficiency, (9th ed.)
the court will seldom allow further time to add and justify others. Ibid, et Per
And if the bail do not justify at the time appointed, and no cur.^AG.z.
further time is given, they are out of court.] ^ Mo™5o

If the plaintiff accepts the bail, he may take away the bail-
piece from the judge's chamber, and file it for his own expedi-
tion, but after twenty days it becomes absolute, and the defend-
jant takes it away and files it.

2. To 'what Time it shall have Relation.

In B. R. though the bail of the defendant be taken and entered Roll. Abr. 53.7.
the last day of the term, and the bill be put in at any time the j,d^uj^ej ' *
same term, this is well enough by the course of that court ; Cro, jac. 384.
though in strictness of law the defendant is answerable but S. C. ad-
from the time of putting in bail as in aistodia mareschalli, and judged; be-
not Detore. whensoever

filed, hath relation to the first day of the term.

If in trover commenced in Hilary term, the conversion is Vent. 155.
alleged to be the 3d of Febi-uaiy in the same term, and bail is adjudgecK
filed the last day of the term, yet this is well enough, for the ^houM be of'^
action shall not be said to be depending until the bill is filed, {a) particular day,

subsequent to the 'a of February.

Bail was put in one term, and new bail added the next term j^ £ ^ q ^
after; and the question was. If this should be bail of the first Reg. i.b.Saik.
term, or only of the term when added ? About which the clerks 100. pi. 12.
differed; but the court was of opinion, that it was only bail of (°^ /'^'"^h
that term when the additional bail was put in, for they said it established
was not bail till completed and accepted (6), and making the practice, tliat
additional bail to be bail of the first term, might do a wrong to oery bail
a third person (c), who might be a purchaser after the first, and *** before
before the additional bail was put in. conimuance-

day shall be a bail, and filed of the precedent term ; and every bail taken after the continuance-
day shall be a bail, and filed of the subsequent term, and not otherwise : but where any new-
bail is added to any other, but so as aforesaid taken on or before the continuance-day, the
same shall be taken and filed as of that term in which the bail was first put in. [As to the
continuance-day, see R. E. 1 1 W. 3. Reg. 2. 2 Stra. 1215 ] (c) For this vids Cro. Jac. 449.
2 ijalk. 564.

H h 3 3. Where

470 BAIL IN CIVIL CAUSES. >^

3. Where a different Action is prosecuted from that in "jchich the I
Bail was given.

z Lev. 235. If there be an original and capias in one county, and bail

Yates and thereupon filed, and the plaintiff after declares in another county*

• '[" T" A ^^^ thereupon obtains judgment, by this variation the bail are
si^reed'by the discharged, and not liable to the damages upon this declaration,
prothonotaries, though by the course of the court the plaintiff might declare in another
account and the judgment would be good.*

* This relates to proceedings in C. P. or B. R. by original. Jlln the K. B. the bail are in
such case discharged, but not in C. B. nor in K. B. by bill. 1 B. Moo. 115. Tidd's Prac. 294.
(9th edit.")|| But if the proceedings be in B. R. by bill of Middlesex or latitat, the b^l will
not be discharged for such variation. [Nor will they be discharged for a variance between the
capias and count in C. P., the ac etiam being in case on promises, but the declaration in debt,
if the Slim sworn to be under 40/. Lockwood v. Hill, 1 H. Black. R. 310. IJUnless the amount
lor which bail must be taken exceeds 40/., in which case they will be discharged. Mayfield v.
Davison, 10 Barn. & C. 223.|1 Nor for a variance between the sum in the ac etiam part of the
latitat and the declaration. Turing v. Jones, 5 Term R. 402. But where the writ was in
plaintiff's own right, and the defendant holden to bail for 120/. due in that right, but the decla-
ration was as executor^ a common appearance was ordered. Hally v. Tipping, 3 Wils. 61. ||See
sTermR. 416. 6 B. Moo. 66. 5 Bro. & B. 4. But it is now settled not to be a ground for
exonerating the bail. Ashworth v. Ryal, 1 Barn. &Adol. 19. And a variance between the ac
etiam part of the writ and the declaration, as to the cause of action where the amount is above
40/., will discharge the bail, as if the writ be in case and the declaration in debt. Levett v.
Kibblewhite, 6 Taunt. 483., or vice versa, ibid, or the writ in assumpsit, and the declaration
in trover. Fetherington v. Goulding, 7 Term R. 80. Delacour v. Read, 2 H. Black. 278. If
no sum whatever be inserted in the ac etiam of the writ, the proceedings will be irregular.
Davison v. Frost, 2 East. 305.||

Gunn v.Mack- [Although the plaintiflP declare in an inferior court in debt upon
henry, 1 Wils. a concessit solvere, and the cause being removed into B. R. he
^'^* declare there in case, yet by this variance he doth not lose the

bail, for it is the very same cause of action ; foi^ if he declare in
the superior court in the former way, the defendant may wage
his law, which he cannot do in the court below.]
2 Show. 335. If A. arrests B. in an action of 20/., and bail is put in thereto,

pi. 545. Re- and afterwards A, delivers two declarations, one for 200/. and
tionfbu" how another for 500/., the bail shall be only liable for the 200/.
far the bail on a latitat have been holden liable in other actions at the suit of the same or
other persons, vide Cro. Jac. 449. 451. Stile, 464. 2 Sid. 163. 2 Jones, 188. Mod. 16.
Comyns, 556. pi. 235. 2 Stra. 922. 2 Barnard. K. B. 44, [It is now settled by rule of E. 5 G. 2.
that " where the plaintiff declares for or recovers a greater sura than is expressed in the pro-
" cess upon which he declares, the bail shall not be discharged ; but be liable for so much as
" is sworn to, and indorsed on the process, or for any less sura which the plaintiff in such
" action shall recover;" and also, by subsequent determinations, for the costs of the original
action. Jackson v. Hassel, Dougl. 330. Peterken v. Sampson, ^. iZ. M. 24 G. 3. Sheddoil
v.Curnes, J?.i2. E.29G.3. See Tidd's Prac.][l 294. (9th edit.)||

Salk. I02.pl. A. brought a bill o^ Middlesex, with an ac etiam for 40/., and
16. now other- recovered 100/.; and the court held, that the bail should not be|
wise, vide liable for more than the ac etiam, which was the measure of his
undertaking: and per Holt C. J. — he is not liable at all; for
his recognizance is to answer the condemnation, and since that
cannot be, he is bound to nothing ; and Cla-k, secondary, affirmed,
that there was a rule of court, that where the plaintiff recovers a
greater sum than is laid in the action, the bail shall not be
chargeable in ista actionc.

4. What

(D) Proceedings against Bailf and how they are discharged, 47 1

4. What Defect or Irregularity may be amended.

If bail in debt is entered in this manner, viz. sub poena exeai- Cro. Jac. 272.
tionis ill adjudicatimie execidionis, where it ought to have been ^"|^ ru**
std> poena condemnationis {a\ yet it shall stand as well for the t^j^g„ f^^ p^rt,
judgment as for the execution: adjudged upon a writ of error; viz. the execu-
and it was ordered to be amended, and made sub poena execu- tion and not
tionis judicii, as well as for the execution. no^more'^han

for part of the debt. Bulstr. 107.

If two are arrested on a latitat^ and one puts in bail in Latch. 182.
Michaelmas term, and the other of the term subsequent, the So ruled on
court will allow the bail put in of the Michaehnas term to be J!^°"^;- f^,
filed as put m of the subsequent term ; tor otherwise it would
be error to proceed in a joint action on bail put in at different
terms.

If a writ be taken out in the name of yi., and the officer takes e Mod.309.
a bail-bond to appear at the suit of J5., and after there is a per cur. Bar-
reddidit se, by the same name; though this be vitiu7n scriptoris Jr^'^Jjj^j/^"^^,
in not making the bail-bond according to the writ, yet it cannot ^^^fg jj,. '

be amended, for the bail must be according to the bail-bond, and AmendmeiU,
not according to the writ.

(D) Of the Proceedings against the Bail, and what
Matters they may plead in their Discharge.

''PHE act of the court in delivering the defendant to bail being (A)RoU.Abr.

of record, entitles the plaintiff to a scire facias, when it ^os. 355.
appears that the defendant has not satisfied the judgment; a Moor. 432.
capias {b) must therefore be returned against the principal, be- p y^*'%4^'^'
fore the scire facias is to issue against the bail. gm ^\^{^ j^ ^'p,
solved and admitted in so many books, that it seems needless to cite them. Vide 1 Lev. 22.?.
That it must issue and be returned, but may be filed at any time after ; — and that it nnist be
awarded within the year, else not till a scire facias against the principal. — 2 Jones, 90". (Ad-
joined.) And notCf that every cajmis ad satisfacicmhim to warrant a scire facias against bail,

must have seven days at the least exclusive betwixt the teste and the return thereof; and
every such capias is to be delivered and left with the sherift' to whom it is directed, four days
exclusive at least before the return, ||and they must be the last four days before the return.
Cock v. Brockhurst, 13 East, ."JSS. ; and Sunday is not reckoned, though the hist tiay. Howard
V. Smith, 1 Barn. & Aid. 528. Furnell v. Smith, 7 Barn. & C. G^r>. ; and see 2 C'hitt. R. 102.
.5 Maule & S. 323.|| Vide 2 Salk. 602. pi. 1 2. 2 Ld. Haym. 1 1 76. That there ought to be eight
days between the teste and return. [A capias tested the term prior to that in which judgment
is signed against the principal, will not warrant proceedings against the bail. 1 H. Black. R. 74.
The capias against the principal is now considered as little more than matter of form, and
chiefly intended to intimate to the bail in what species of execution the plaintiHT means to
proceed ; and the leaving it in the sherifTs office, being a notice to the bail that the plaintiff
will proceed against the person of the defendant, it is incumbent on the bail to search there
for it : and the court will not enter into an examination by affidavit, whether the ca. sa. was
actually returned, or such return actually filed, before the issuing of the scire facias against
the bail : for though the bail plead to the scire facias that no ca. sa. was returned and filed
before the teste of the scire facias, such return may be filed at any time before putting in a
replication. 5 Burr. 1360.] ||The sherifFmay return non est inventus, though he knows where
the defendant is; but not if he has him in actual custody at another suit, or on a criminal
charge. Burks v. Main, 16 East, 2. Forsyth v. Marriot, 1 New R. 251. Ward v. Brunfit,
2 Maule &S, 238.; and see Dudlow v. Walchorn, 16 East, 59.||

II h i II Ami

472 BAIL IN CIVIL CAUSES.

Thackray V. ||And where a capias ad sat. was lodged, and returned non est

&A[d'2i2^"' "'^^'^^"^j ^"d proceedings were had against the bail, bu they
surrendered in time, and the defendant was then bailed again
and discharged, the court held, that a fresh ca. sa. was necessary,
in order to proceed against the last bail.

Dudley V. As a writ of error is a stay of all further proceedings, the

Ri I- R plaintiff below cannot afterwards sue out a ca. sa. in order to

1183. Miller P^'^ceed against the bail.

V. Newbald, 1 East, 66^.

Snran "^"^ '^® ^^^^ ^^^ plead that a writ of error was sued out

Monprivatt ^^^^^ '^^ isuing and Ijefore the return of the ca. sa.

1 1 East, 316. Sampson v. Brown, 2East, 439.

FoiT**25^^^ Where the writ of error is not allowed till after the return of

the ca. sa., the bail may be sued pending the writ, unless an
order of court to the contrary has been obtained. ||
Salk. 101. pi. But though on the return of the capias the plaintiff is entitled
15. [It was an- to a scire facias, and the recognizance in strictness is forfeited,
ciently the yg^ jf [jjg defendant render himself at any time before, or on the
court not to^ ^^y °^ ^^ return of the second scire facias against the bail, where
allow a render two nihils are returned, or on or before the day of the return of
after the re- the first scire facias {a), where a scire feci is returned, sedente
turn of non est curia, and notice of such render be given to the plaintiff or his
'capil^aTsatu- attorney, the bail shall be discharged.

faciendum. Cro. Eliz. 738. But a great mischief resulted from this practice ; for the plaintiff
would sue out a capias, returnable the next day, so that the bail had little or no time to bring
in the body. 1 Ld. Raym. 157. To remedy this, the judges indulged the bail so far as to per-
mit them to render the body, upon the return of the first scire facias^ if the capias were
returnable de die in diem; Cro. Eliz. 618. 738. ; but if it were returnable the next term, the
bail were strictly holden to render the principal by the return of it. Ibid. Popham C J.
extended this indulgence still farther ; and permitted the bail to render any time before the
return of the second scire facias, or upon the return, sedente curia. Cro. Jac, 109. This prac-
tice, however, appears to have been disallowed by Lord Coke. Mo. 850. 3 Bulstr. 182. S. C.
But it was soon after revived by Croke S.^ and is now fully established. W.Jon. 139. Sty.
Rep. 324. 8 Modi 52. Before the return of the capias ad satisfaciendum., the render is a
matter of right, and may be pleaded, 1 Ld. Raym. 156. But afterwards it is allowed by the
grace and favour of the court, and not ex debito justities ; for the condition of the recognizance
is broken upon the return of non est inventus to the capias. R. T. 1 Ann. Reg. 2 Ld. Raym.
721., and therefore a subsequent render cannot be pleaded. Kreley v. Medley, M. 24G.5.
Barnes, 106. ; though, if made in time, the bail may be relieved by motion. But if the plain-
tiff, upon the return of non est inventus to the ca. sa., proceed against the bail, and deliver a
declaration conditionally j the court will not stay proceedings against the bail on their paying
the debt and costs in the original action only, but will oblige them to pay the costs of the
second action, although they have tendered the original damages and costs before the end of
eight days from the return of the ca. sa., within which time, by the practice of the court, they
might have discharged themselves by surrendering the principal. Perigal v. Mellish, 5 Term R.
563.] (fl) How it is to be returned, and how many days there must be between the teste and
return, v'ldeCio. Eliz. 738« 2 Salk. 599. pi. 7., and tit. Scire Facias. ||Petersdorf on Bail, 356.
Tidd, 283. (9th edit.)||

2Roll.Abr. If an action of debt be brought on the recognizance, and the

600.897. defendant render himself in custody within eight days in full

Wbch^e'i e'^ ^^^^ after the day of the return of the process against the bail,
Godb. 354'. they shall be discharged.

Raym. 14. 2 Show. 77. Salk. 101. pi. 13. 2 Salk. 600. pi. 10. Carth. 515. 6 Mod. 152
sMod. 340» Ld. Raym. 721. 3 Salk. 56. pL 8. [jAn intervening Sunday is reckoned a day.
14 East, 537.11

'^D) Proceedings against Bail, and how tliey are discharged, 4fJ3

If the defendant dies (a) before the return {b) of a capias ad Roll. Abr. 336.

satisfaciendw7i against him, his bail pleading the same may be "J""^*' 29. Cro.
V u 1 r & J Jag 97 Moor,

discharged. 432. pi. 607.

775. pi. 1073. Poph. 186. Hut. 47. Stile, 324. (a) They may plead that the principal died
before any judgment against him, because they cannot have a writ of error to reverse that
judgment. Cro. Eliz. 199. adjudged. But 2 Leon. 101., the whole court, except Wray, in-
clined otherwise. And rirfeGodb. 377. Roll. Abr. 742. (6) But if he dies after the return of
the capias, this will not excuse the bail. Roll. Abr. 336. Barnes, 106. 2 Wils. 67. 5 Term
R. 363. lleTerm R. 284.|| And where the defendant pleaded that the principal died before
the scire facias bron^t, and without more, it was adjudged no good plea. Cro.Jac. 165.
Hutt. 47.

II As the courts will not discharge a defendant on the ground Ibbotson v.
of insanity, so they will not exonerate the bail on that ground. || ^°Jr ^^ll

If A., as bail, enters into a recognizance that B. upon eight Cro. Jac. 45.
days' warning comparebit to any action that shall be brought by C, |"p \f'\^^*
necnon that if J5. shall be condemned in the said action, and does judges at^irTst
not pay, Sfc. that then he will answer the condemnation, and C. two in both
does bring an action against B., and he is condemned, and does books, and the
not pay, Sfc. ; in debt upon this recognizance, it must be averred pia'"tiff ac-
that he gave B. eight days' warning to appear, Sfc. for A. is bound continued his
only to answer the condemnation in such action upon which eight action,
days' warning was given, for that is the foundation of the whole;
and there is no reason that B.y by his voluntary appearance with-
out warning, should prejudice his bail.

If a defendant gives judgment with a stay of execution until a (c) Where
certain day, the plaintiff may, notwithstanding such stay of exe- there was a
cution, sue forth a capias ad satisfaciendum to the sheriff of the contrivance
county where the action is laid, and returnable before the day, plaintiff' and
to make out a testatum against the defendant ; but no such capias the principal
ad. satisfaciendum shall be sued forth to warrant a scire facias to free and dis-
agaiust the bail (c), because it is to the prejudice of a third person, "^'f'^^ ^^

to charge the bail, vide Bulstr. 43.

If the plaintiff ||inC. B.jl does not declare against the prin- Cro.Jac.620.
cipal within two terms after bail put in, the bail will be dis- gg'^^g^b^'g^*
charged, as likewise the principal on filing common bail. llSykes v. Bau-

wens, 2 New R. 404. In K. B. though a non pros may be signed if the plaintiff" do not declare
in two terms, yet if it is not signed, the plaintiff* has a year to declaie in. 2 Term R. 1 12.
3 Barn.& A.272.||

But if after bail put in, and before the plaintiff hath declared, 3 Mod. 274.
the defendant obtains an injunction, and this is continued for aiU""ged be-

0 ^ lWCCII i_IOC flllu

several terms, and after dissolved, and the plaintiff soon after de- i)tiwson.
clares and gets judgment, and brings a 5a>^^c/flf5 against the s Mod. 3 15,
bail, they cannot plead that no declaration was delivered or filed "G. 3 Will. R.
against the principal within two terms after the action commenced '^^'
and bail entered, for there was no default in the plaintiff that he
did not declare sooner.

They are also discharged where the defendant is made a peer (rf)Trindorv.
of the realm (c/), or member of the House of Commons (<?); or Shirley, Dougl.
where he becomes bankrupt (^), and obtains his certificate at any „rijie v."""
time pending the action, and before the bail are fixed: scciis, if Klood, H.
not till after they are fixed. And in any of these cases, the 26 G. 3.

court, (g)WooUeyv

474

BAIL IN CIVIL CAUSES.

C bbe 1 Burr ^°"''*-' ^^ motion, will order an cxoneretur to be entered on the
244. Cockerili bail-piece.

V. Ouston, Id.436. Martin v. O'Hara, Cowp. 823. l|Mannin v. Partridge, 14 East, 598. Harmer
V. Hagger, l Barn. & A, 552. Stapleton v. Macbar, 7 Taunt. 589. Johnson v. Lindsay, 1 Barn.
& C. 247. It seems that the bankruptcy and certificate of the principal cannot be pleaded
by the bail, but relief will be had on motion, since the bail may surrender. Donelly v. Dunn,
1B0S.& Pull. 448.11

Linging v.

Comyn,

2 Taunt. 246.

T. Bruce,

2 Chitt. R.
106.; and see
8 East, 453.
Meyrick v.
Vaucher,
6 Term R. 50.

Folkien v.Cri-
tico, 15 East,
457.

Wood V. Mit-
chell, 6 Term
R. 247. Fowler
V. Dunn,
4 Burr. 2054.

Sharp V. She-
riiF, 7 Term R.
226. Daniel v.
Thompson,
15 East, 78.

Robertson v.
Patterson,
7 East R. 405.

Bryan v.
Woodward,

4 Taunt. 557.
Hodgson V.
Temple,

5 Taunt. 503.
1 Marsh. 166.
S.C.

Salk.89.pl. 11,

II If a creditor having obtained judgment proves his debt under
the commission, and then proceeds against the bail, they are
entitled to be discharged, for he could not in such case take the
bankrupt in execution.

And if the defendant is discharged under the Insolvent Act,
before the time when the bail are fixed, the bail are entitled to
an cxoneretur, in the same way as if their principal is bankrupt.

If the defendant is sent abroad under an alien act, the bail are
entitled to their discharge, since it has become impossible to
render him, and this without fault of the bail.

But an exoneretur will not be entered while the defendant
continues in this country, on the gi'ound that he is in custody,
and on the eve of being sent away under the alien act. ||

[Where the defendant is under sentence of transportation, the
court will permit an exoneretur to be entered on the bail-piece.
An application for a habeas corpus to bring up a defendant under
sentence of transportation who was on board a ship in the river
Thames ]ns\. ready to sail, in order that he might be surrendered
in discharge of his bail, has indeed been rejected ; but that was
merely on account of the inconvenience of bringing up the de-
fendant at that period : and where a defendant was confined
under a charge of felony, the court felt no difficulty in granting
a habeas corpus to bring him up for this purpose, though it was
urged that the bail were indemnified. But the bail are not at
liberty to make such an application till they have justified.]

II And where a seaman was arrested and gave bail, and after-
wards, without collusion, was impressed into his majesty's service
under the 32 G. 3. c. 33. § 22. the court held, that under the
equity of that statute the bail were entitled to an exoneretur, on
an affidavit that they were not indemnified. But if tlie bail in
such case permit the plaintiff to proceed to judgment against
them, they will not be relieved.

The fact of the defendant being in custody under an extent
at the suit of the crown, and therefore incapable of being ren-
dered without consent of the crown, is not a ground for an
exonei'ctur of the bail, since he may pay the crown debt and
be discharged ; and the court will only allow an exoneretur
where the principal is placed irrevocably out of the reach of the
bail, so that there is no possibility of their rendering him.jl

J. S. acted as attorney for the plaintiff in the original action,
and after judgment in that action took ont vt scbe facias, and pro-
ceeded to judgment against the bail without any new or second
warrant; on a writ of error, as well of the principal judgment
as upon that against the bail, the court held, that any body

mijrhL

(D) Proceedings against Bail, and how they are discharged, 475

might have taken out the scire facias; but as to the further pro-
ceedings they were irregular, the attorney's authority determining
with the first judgment ; and therefore they reversed the judgment.

If judgment be given against the principal, and after, upon a q^^ q^^ ^^^
scire facias against the bail, judgment be also given against them, Jones, 325.
these judgments are several, and they shall not join in a writ of Godb. 440.

error no more than tenant for life, and he in reversion, or the ?• ^- adjudged
. . J 1 . • between Lan-

tenant and vouchee, may jom. ^.^,te, 3„d

Keyleigh. Hob. 72. Cro. Jac. 384. Roll. Rep. 294. Cro. Car. 408. 574. Jones, 560. Bulstr.
125. Lit. Rep. 93. Lev. 157.

If the condition of a recognizance be, that the principal shall gj.jjj j^^ j
surrender himself, or pay the money ; and the breach assigned be, le. adjudged,
that he hath not surrendered himself; this is naught, for he (a) Where the
miglit have paid the money la\ and then the condition is not '^"•^ ™^>' P'^^'^
broken payment by

°^°^^"- , the principal,

and how such plea is to be pleaded, ri^fe Roll. Abr. 555, 336. 2 Lev. 212. Cro.Eiiz. 233.
Stile, 324. 2 Leon. 213. Cro. Eliz. 152.* Where a release to the principal discharges the
bail. Roll. Abr. 536.

• The bail pleaded in scire facias, upon the recognizance, payment by the principal, before
the return of the second scire facias ; and the plead held bad ; for in strictness of law the
recognizance was forfeited, by suing out the first scire facias. 1 Ld. Raym. 157. In such case,
if the payment had l)cen really made, the bail should have moved to stay proceedings, on pay-
ment of costs incurred against them before the payment. ||But see 4 Ann. c. 16. § 12. enacted
since the above case.||

II So, where in scire facias to have execution against J. B. and Wilkinson v.
G. K. for damages and costs recovered against J. B. on a recog- ^^'^^^'^ ^
nizance conditioned, if J". B. and G. K. should be condemned, that 53 ^" ^
J. B. and G. K. should pay, Sfc. or render, the plaintiffs alleged
that J. B. and G. K. had not paid or rendered themselves accord-
ing to the form and effect of the recognizance, the breach was
held ill assigned on demurrer; for non constat but that J. B., the
party condemned, had paid or rendered.

The recognizance must be set forth with certainty and pre- 2 Salk. 564.
cision, and if there be a material variance, it will be fatal on the 1 Taunt. 221.
plea of mil tiel rccojd, and the breach must be stated according aIj""/*!.'!'
to the effect of the obligation of the recognizance. II 33^

But if in a joint action against two, J. S. is bail for one of them, 2 Show. 147.
and there is judgment against the principals, in a scire facias pl.ias.Cresley
against J. S. the bail, it is sufficient to allege that the defendant ^J'J Pf j'"? .
for whom he was bound did not pay the money, and if the other •' ° "****
had paid it, he should have pleaded it.

A. and B. are bail to an action in B. B., where judgment is Roll. Abr. 334,
given against the principal, who brings a writ of error in the ^^'>- Moor,
Exchequer-chamber, pending which the bail bring in the prin- «;''•'• P'« * 165.
cipal, or the principal renders himself to prison ; though the re- s.C. 3 Bulstr.
coverer cannot pray him in execution, nor can the court put him 192. S.C.RolI.
in execution, because the writ of error is a supersedeas to it, yet Rep. 592. S.C.
this is a good discharge of the bail, for the marshal ought to keep « j> p ^"'
him in prison as a pledge till the judgment be affirmed or dis- 100.3 Mod.87.
alfirmed, as he does upon mesne process for want of bail.

If the principal surrenders himself, or the bail render him up, Roll. Abr.337.
this will discharge the bail, and may be pleaded to the scire Moor, 888.

facias :

476 BAIL IN CIVIL CAUSES.

Leon. 58. facias {a) : but such surrender or render are not sufficient, unless
f ^wh*^^^^ the plaintiff or his attorney have notice of it (6); and this is re-
principal'^was quired, that the plaintiff may, if he pleases, charge him in exe-
in actual exe- cution ; also, that he may not be at any further trouble or charge
cution, and a in proceeding against the bail.
committitur en-
tered, yet after two scire facias's returned, and judgment thereupon, the court would not set

it aside on motion, for the bail ought to have pleaded it. Skin. 1 20. So where the principal

surrendered himself before the return of the capias, yet the plaintiff having had no notice, and
there being no discha ^,0 of the bail-piece, or exoneretur entered, and the plaintiff having pro-
ceeded to judgment gainst the bail, the court would not relieve them on motion, but put
them to their audita querela. Salk. 101. pi. 14. {b) But if through want of notice he is at
further charge against the bail, that shall not vitiate the surrender; but yet the bail shall not
be delivered till they pay such charges. 6 Mod. 238. ||As to the notice, see Tidd's Prac. 291.
(Sth edit.)|| [Say. R. 7. 1 Burr. 409. Where the bail-piece had been previously delivered
out to be filed to the plaintiflfs attorney, who neglected to file it, proceedings against the bail
for want of an exoneretur were stayed. 8 Mod. 280. 1 Burr. 409. Upon what terms, and
at what time the court will stay proceedings against the bail, pending a writ of error, see
1 Stra. 419. 445. S'iQ. 2 Str. 717. 781. 872. 1270. 1 Burr. 540.]

R.K.B. Tr. The bail are at liberty to render the defendant before they

55 G. 5. justify, notwithstanding a rule has been obtained against the

The like sheriff to bring in the body, at any time before the expiration of

liberty after an such rule; the attorney for the defendant giving notice of such
assignment of render to the plaintiff's attorney without delay, and making
the bail-bond, affidavit thereof.
Edwm V.Allen,
5 Term R. 40 1 . Meysey v. Carnell, Id. 534. S. P.

Tidd's Prac. ||It is not necessary in either court, for the bail to justify in

381. (9th ed.) order to render, even after they have been excepted to. And on
exception to bail, if notice be given of other bail, only one of
whom justifies, and the names of the former still remain on the
bail-piece, the first bail may render in the K. B. Even bail who
have been rejected, have in that court been holden, so long as
they are on the bail-piece, competent to surrender the defendant.
And where one bail only had justified, and time had been
refused by the court to justify another, the court held the
render sufficient. In the Common Pleas, when bail above were
excepted to, and could not justify themselves, they were formerly
considered as no bail, and could not have rendered the defendant
to prison ; but other fresh bail might have been put in ; and
before any exception taken to them, they might have surren-
dered him in discharge of themselves; and it is now holden,
that bail who have been rejected, may enter into a new recogni-
zance, for the purpose of rendering the defendant. But bail,
surreptitiously put in, are not allowed to render him.Jj
Salk. 98. pi. 5. If^' sues jB. in three actions, and B. puts in three several
fer cur. bails, the plaintiff recovers in all, and the defendant renders him-

(c) Where self, on which one of the bail only enters an exoneretur ; though
after a ^"rr«;n- ^.j^^ rendering is a discharge in posse as to all, yet it is not corn-
chamber th°e plete and actual as to all, till an exoneretur entered upon all. (c)
principal escaped from the tipstaff, [it was holden not to be a good render. 6 Mod. 258. And
a render is not complete till the bail have paid the gaolei"'s fees. Com. Rep. 554. In K. B. it
is necessary to make an entry of the render in the marshal's book, which is kept in the King s
Bench Office; it being holden, that until such entry be made, the defendant is not in custodj-,
80 as to charge the marshal iu an action of escape. 1 Salk. 272. ^tra. 1226. 2 Burr. 1049.]

(D) Proceedings against Bail, and how they are discharged. 4riJ

If the bail plead a render of the principal, they must conclude Latch. 149,

their plea vroiit patet per recordum (a) ; for this is not to be tried ^'0^1^^?'
• 1^ u iu 1 i85.S.C.Hob.

per pats, but by me vecom. 210. Moor

888. pi. 1249. Keb. 761. 815. S.P. adjudged. Sid. 216. dubitatur, and said there were pre-
cedents both ways ; but vide Lev. 211. 2 Keb. 189. 206. Like point adjudged, (a) So if in
a scire facias against bail upon writ of error, according to the statute of 5 Jac. 1. c. 8. they
plead the plaintiflF prosecuted the writ of error with effect, and thereupon the judgment was
reversed, they must coniAnde prout patet per recordum. Raym. 50.

Also in pleading a render of the principal, the bail must say sBulst. 192.

quod venit hie in curia (b) et in eadem curia {c) reddidit se ei'^per u°n r Iq'o

eandem curiam commissusfuit ; but it being here laid to be done 395 * 3'^ ^'^j

the 2d o^ February, (being Candlemas-day, and so dies nonjuridi- S.P. admitted

ais,) it judicially appears there could be no court that day, and ^^fcur. though

so the render and commitment void. *Va ^^^ ^"'"'.

aafiuc remanet

in custod., S^c. for if in prison without render or commitment, it is not material, {b) Vide Stile,

330, 331. {c) The render must be made in that court where the record is at the time. Cro.

Jac. 98. Roll. Abr. 534.

In a scire facias against bail, they cannot plead that the Moor, 400.
plaintiff hath arrested the principal in the Stannary^court, per pi. 524. ad-

quod they could not have his body, for they might have removed J"?g^."- , [^
V . I ? 7 *' JO pnncipal con-

him by habeas corpus. ^ ticted of felony

and under sentence of transportation may, in proper circumstances, be removed by habeas
corpus, and surrendered in discharge of his bail. Case of the bail of Peter Vergun, 2 Stra.
1217. Fowler v. Dunn, 4 Burr. 2034. How a soldier may be surrendred by his bail, see Bond
V. Isaac, 1 Burr. 339.] USee 5 Taunt. 516.||

II Where the crown is concerned, the courts will not in general „ .
change the custody without the express consent of its officers. j^g^^ j g^^

& Bing. 23. 5 Mo. 259. S. C; and see West on Extents, 90. Tidd. 287.

Though, where a defendant being charged in custody upon Boise & Set-
an extent or information, or for a contempt in not paying the ter'sCa. iStra.
king's debt, is brought up in the Court of King's Bench on a q^ 'j s^jj*^^*
habeas corpus, to be surrendered in discharge of his bail, and it 353, Chitty's
appears that the civil action in which he was bailed was com- Ca. 1 Wils.
menced before the other proceedings, and the court are satisfied ^*?' .^® *j[*®
that it is for a just debt, and the application really made by the [he"e'cate*s
bail, they will commit him, as their prisoner, to the custody of much ques-
the marshal; for, by the 25 E. 3. stat. 5. c. 1.9. "the king's tioned by
debtors shall not be protected from the proceedings of the other GibbsC.J.m<\
creditors against them." The attorney-general may, however, CommonPleas
have a habeas corpus to remand the defendant. But in the Com- in 5 Taunt,
mon Pleas, where A. was arrested and held to bail in a civil 5ic.
action, after which an extent issued against him at suit of the Hodgson v.
crown, and he was thereupon committed to the custody of the 5X^unt. 503.
sheriffs oi London, on an application to the court by the bail, it 1 Marsh. I66.
was holden ; first, that the bail were not entitled to enter an S. C.
exoneretur on the bail-piece ; secondly, the crown having refused
its consent to the defendant's being surrendered, unless he should
be immediately remanded to the custody of the marshal, that the
Common Pleas would have no authority so to remand him after
he had been surrendered to the Warden of the Fleet ; and thirdly,
that the bail could not surrender the defendant by habeas coipis,
as a matter of right, without the consent of the crown. But the

court

478

BAIL IN CIVIL CAUSES.

2 Jones, 75.
2 Mod. 312.
.S.C. 2 Lev.
195. S.C.
Ventr.3I4.
S. C. Cro. Jac.

320.R0II Abr. i3efore.(a)

court expressed their readiness to give the bail time for sur+
rendering the defendant. II

So in a scire facias against bail, they cannot plead that before
the return of the second scire facias the plaintiff prosecuted a
testatum capias against the principal, directed to the sheriff of,
S^c.f who took the principal in execution upon the said judgment,
et adhuc hahet et detinetx for the recognizance was forfeited

897.

Audita Querela, letter (B). (a) This is strictness of law, yet the court, ex gratill, would have

permitted the bail to have surrendered the principal before the return of the scire facias.

See ante.

2 Saund. R.

72. b.; and see

Hayward v.

Ribbans,

4 East, 309.

Horsley v.
Walstab,
7 Taunt. 235.

II Where the cause is referred to arbitration the bail are dis-
charged, unless a verdict is taken for the plaintiff: and therefore,
in that case, an enquiry should always be made, whether there
are bail or not; or a verdict should be taken, subject to the
arbitrator's award as to the damages.

Where the plaintiff, after proceeding at law and obtaining
bail, filed a bill in equity for the same cause of action, and
elected to proceed in equity, and a perpetual ^injunction was
granted against his proceeding at law, the court still refused to
discharge the recognizance of the bail ; saying, the Ij^^ might
apply when any step was taken against them.H '^^

[A cognovit by the principal, without notice to the bail, will
not discharge them.]

II Unless time be given to the principal beyond the time when
the plaintiff might have had judgment and execution in the

original action

Hodson v. Nu-
gent, 5 Terra
R. 277.
Bowsfield V.
Tower,
4 Taunt. 456.
Croft v. John-
son, 5 Taunt. 319. Thomas v. Young, 15 East, 617. j and see 5 Barn. & C. 269.

Brickwood V. And taking a composition from the defendant, does not
Anmss, discharge the bail if the plaintiff expressly reserve a right at any

Melvill V. tvcae. to proceed against the defendant.

Glendinning, 7 Taunt. 126. ; and see 8 Price, 467.

Willison V. But it is otherwise if the plaintiff is tied up from proceeding. I|

Whitaker, 7 Taunt. 53.

(D 2.) Of the Proceedings on the Bail-bond.

T" 1 r P '-T^ ^^'^ above be not put in and perfected in due time, the bail-

297. (8th ed.) bond is forfeited ; and the plaintiff may either take an assigu-

Gilb. C. P. 20. ment of it, or proceed against the sheriff for not bringing in the
body.

If he be dissatisfied with the bail below, he should not take an
assignment of the bail-bond ; for by so doing, he not only dis-
charges the sheriff, but if the same bail be put in above, he
cannot afterwards except against them.
Tidd's Prac. 134, 155. 153.

Before the statute for the amendment of the law, ||4 & 5 Ann.
C.16. § 20. ante., p. 443.11 the sheriff was not compellable to assign
the bail-bond ; though if he had not assigned it, the court would
have amerced him.]

II By

1 Salk. 99.
1 Wils. 223.
1 Salk. 97.
7 Mod. 62.
117. 6 Mod.
122

1 Mod. 228
Vide swpru.
1 Sid. 23.
2" Mod. 84.

(D 2.) Of the Proceedings on the Bail-bond,

479

II By 48 G. 3. c. 58. it is declared that bail-bonds taken in 48G.3. c. 58.
actions at the suit of the king, shall be assigned to his majesty.jl

[It hath been said arguendo, that the bail-bond may be assigned Paradice v.
before it is forfeited; though it cannot be put in suit till after- n°^"^'--
wards.] \\SeTvide Dent

V. Weston, 8 Term K. 4.11

II If the sheriff refuse to assign the bond, he is liable to an Stamper v.

action on the case ; but as the legislature only intended that the Milbourne,

sheriff should be compelled to assign bonds that were valid at Is "^"d fii^"

the time of the application for an assignment, it has been held, Pariente v.

that an allowance of bail above, subsequent to the commence- Phimbtree,

ment of an action against the sheriff' for not assigning, is a suf- ^ Bos. & Pull,

ficient answer to the action, provided the bail is put in and ff"' ^"<J '^^^

allowed, as of the term in which the writ is returnable. 1| i Taunt, iia.'

Mendez v. Bridges, 5 Taunt. 325.

[Where the defendant has neglected to put in and perfect bail Tidd,299. (sth

above, the plaintiff* is not out of court by omitting to declare in I 0*^3^'^ u^^'

the original action, within two terms after the return of the writ ; r gyg,

but he may still take an assignment of the bail-bond; for he is ||4 Taunt. 715.

not bound to declare de bene esse, within the time limited for the that he cannot

defendant's appearance; and after that time he cannot declare, mentTfteTa""

until the defendant has actually appeared. year from the
return in K. B. or after the end of vacation after the second term in C. B.H

By a rule of the Court of Common Pleas, Hil. 9 Ann. no bail- Sty. Prac.Reg
bond, taken in London or Middlesex, can be put in suit till after
four days, exclusive of the appearance-day, of the return of the
writ; and, taken any where else, till after eight days, exclusive of
the aj)pearance-day of such return, upon pain of having all
proceedings thereon set aside with costs upon motion. The like
rule was in D. It. M. 8 Ann, except that in country causes, the
time is limited to six days instead of eight.

If the last of the four days happen on a Swidaij, the defendant ^^" ^^^

has the whole of the Monday to put in his bail.] 782. ' "

II In the King's Bench, if the fourth day for perfecting bail be Dent v. Wes-
the last day of term, and bail be not perfected before the rising ton, sTermR*
of the court on that day, an assignment of the bond in the even- ^•
ing of that day is regular.

After default made in putting in bail in time, it is not enough Turner v.
that bail are afterwards put in; but the plaintiff may take an Cary, 7East,
assignment of the bail-bond, and proceed thereon, unless bail be ^°^*
also justified, though not before excepted to.

If the original action is pending when the assignment of the Pigott v.
bail-bond is taken, the proceedings cannot be set aside, because T'^ji'^*^' ^^'^\'
the plaintiff has proceeded after the original action is out of jjnjj"ge **
court; but the proceedings maybe stayed, if the plaintiff has 4 Taunt. 715.
been guilty of lacJieL ||

[The court will not order the bail-bond to be delivered up to
be cancelled, on the ground of a misnomer.]
109. Sed vide 4 Maulc & S. 360. 1 Chitt. R. 282. and note contrh. ; and see 2 Barn. & C. 563.M

II Nor can it be cancelled in the King's Bench on the ground

257. Bellis v.
Mitford,
2 Black. R.
1009. llSee the
RuleT.30G.5.
C. P. 1 H.
Black. 525.11

3 Price, 257.

3 Term R. 572.
11^ Bos. & Pull.

,<«M«««HM|MMpN*'»iiMk1#<4HMMMiM«WMMMrfM«IM«MBMH)^^

480 BAIL IN CIVIL CAUSES

(a) 1 Dowl. & of the plaintiff's attorney having neglected to take out his certi-
^y- ^l^' „ ficate (a) ; nor in the Common Pleas, because the defendant has
Pull 466 been arrested on a special capias, in which, as well as in the

(c) 4 Bam. & affidavit to hold to bail, the initials only of his Christian name
Aid. 536. ; and were inserted (b) ; though it is otherwise in the King's Bench {c) ;
^T ^ r'"^'^^^' °^ because the place where the affidavit to hold to bail was
Pull. 105. sworn is not mentioned in the jurat, {d) So, if a noncom-
(e) 4 Taunt. missioned officer has been arrested and given bail, the Com-
557. mon Pleas will not, after judgment recovered against the bail,

(g)2Taunt.G7. ggj. aside the proceedings and cancel the bail-bond, (e) And in
that court, if the plaintiff sue out writs into two counties, and
arrest the defendant, who gives bail in both, the plaintiff may
regularly proceed on the first bail-bond, (g) ||
R.M. 8 Ann. [Where the plaintiff has not lost a trial, the court or a judge
Reg. 1. Cowp. will stay the proceedings on the bail-bond, upon putting in and
p^u ^ perfecting bail above; paying the costs incurred by the aasign-
'" ment of the bail-bond, to be taxed by the proper officer ; receiv-
ing a declaration in the original action ; pleading issuably ; and
taking short notice of trial, so that the cause may be tried the
same term.
Cowp. 769. And wherever the defendant is guilty of a neglect in not

putting in bail in due time, by which the bail-bond becomes
forfeited, the notice (in case the party means to put in bail, in
order to stay proceedings on the bail-bond,) should be, that he
will put in and -perfect bail on such a day; when the plaintiff may
oppose them in court, without its being a waver of the bail-bond.
But if the plaintiff have lost a trial, the court will further
R. M. 8 Ann. require that the bail consent that judgment be entered against!
^Wt^'i252 them on the bail-bond for the plaintiff's security; after whichJ
Carmichael v. they are liable to immediate execution, if the defendant should
Troutbeck, fail in the action ; and they cannot discharge themselves by li
Trin. 24G.5. surrender.] '

Tidd'sPr..'504.

Whitehead V. ||The bail-bond in such case must stand as security, even
2 Barr'& A. though the defendant has been surrendered by his bail.

585.

1 Chitt. R. By losing a trial is meant that the plaintiff has been prevented,
270. a. 357. by the neglect of the defendant to put in or perfect bail in due
* D ^"''&;^R *^'"^' ^^^"^ trying his cause in, and obtaining judgment of the
450. %Id. 140. same term in which the writ was returnable.

2 Bing. 227.

1 Chitt. R.^ This of course can only happen in town causes, or whei'e the
357.a. Tidd's ^g^^^ jg laid in London or Middlesex (a), and depends on the
(gUi^ed?!!) ^^^*^® o^ t^^ proceedings, as when the writ was returnable, and
(a) In country declaration delivered, and whether the defendant lives more than
causes it has forty miles from London, for if he do, he is entitled to fourteen
not been ^j » ^^^^^^^ ^f trial.

usual on stay- •'

ing proceedings on the bail-bond when a trial has been lost, to require the bail to consent
that the bond shall stand as a security, though there seems the same reason for it as in town
causes. See Tidd's Prac, 304. 7 Price, 535.

2 Barn. & A. By the rule of the Court of King's Bench, Mich. 59 Geo. fs.

proceedings

(D 2.) Of the Proceedings on the Bail-bond. 481

proceedings regularly commenced on the bail-bond cannot be 240. Tidd,
stayed, unless the application, if by the defendant, is on an affi- 302. (9th ed.)
davit of merits, and if on the part of the sheriff, bail, or officer,
on an affidavit shewing that the application is on his part, and at
his expense, and for his indemnity, and without collusion with
the defendant.

The rule only applies to proceeding regularly commenced on
the bail-bond.

The affidavit, if on the part of the defendant, must state that 5 Bam. & Aid.
he has a good defence on the merits, not merely that he has a '^°^'
good defence.

In the Common Pleas the bail on such an application are not 1 NewR. 123.
required to swear to merits, whether a trial has been lost or not.

Nor are they in the Exchequer, where a trial has not been 3 price 52.-
lost. II and see 8 Price,

610. 13 Price, 114.

[The sheriff's bail are liable to pay what is really due to the Savage v.
plaintiff, though beyond the sum sworn to, and costs, to the full West, 9G.3.
extent of the penalty of the bond: and the court will not relieve cited in Cowp.
them on the death of the defendant in the original action, where the n^ ",,!-« ^p**^*^*
plaintiff might have had judgment against him (a), if bail above ii8TermR.28.
had been put in and perfected in time. But where the defendant 1 East, 91. m
dies, before the plaintiff could have had judgment (^), if there notis.\\{d)RM,
has been no delay in putting in and perfecting bail, the court h^^{u^ B
will stay the proceedings upon payment of costs only.] 5g2. CowoIti.

Barnes, 112. Barnes, 61. 70.

II Where several actions are brought upon the bail-bond, it is Tidd'sPr.305.
nsual, in suing out execution, to apportion the debt and costs in (^^** ^^'t.)
the original action amongst the diflferent defendants, so as to levy ''^^ i^ "°* '°
a part on each, together with his own costs, (c) But the bail it gary to brint^
seems are not liable beyond the penalty of the bond, where they several ac- "
are let in upon terms to try the cause, the bail-bond standing as tions, and if

a security, although the debt and costs exceed the penalty after ^''°"Sht with-
.1 ^ • 1 ,, ° * •' out sufficient

th'^'tnd.W reason the

Court of K. B. will only allow the costs of one action. 2 Bam. & A. 598. 1 Cbitt.R. 337.S.C.

[If after the death of the plaintiff, his attorney take an assign- Hutchinson v.
ment of the bond, the proceedings thereon will be set aside.] ismith, s Mod.

' 1 C3 J 240.

II The bail cannot avail themselves of the bankruptcy of the Tidd, 305.
defendant. ^"^''P- 25.

But if the defendant or his bail become bankrupt after the 4 Moor. 350.
bond is forfeited, the plaintiff's demand, being provable under ^ Bro. & Birg.
the commission, is barred by the certificate. *

Bail to the sherifl" are discharged by the defendants giving a 4 Bam. & Aid.
cognovit, without knowledge of the bail, for payment of debt and oi.
eosts.

"Where they have knowledge of the cognovit they remain ^ ^^n- *• ^*
liable, but the plaintiff' must give them notice that the cognovit *^ '
is unsatisfied before he can proceed against them.

Vol. I. I i And

482 BAIL IN CIVIL CAUSES.

Tidd'sPrac. And in case of render in discharge of bail, the courts will stay

505. (9th ed.) ^Yie proceedings, if the notice of render be given before the assign-
ment of the bail-bond, otherwise not.||
Swaynev. [If the plaintiff take an assignment of the bond during the

Crainmond, pendency of a rule to set aside proceedings for irregularity, and

4TermR.l76. •, , -^ ,. . ,, /• .^ . ^^ mi u« . .«-

ro stai^ proceedings in the mean ttme^ such assignment will be set

aside, for the rule is a suspension of proceedings to all purposes.']
4 Barn. & Aid. ||And the proceedings will be set aside, if the plaintiff take an
^^* assignment after the defendant has given a cognovit, without

knowledge of the bail, for payment of debt and costs. ||
Francis v. [The action upon the bail-bond must be brought in the same

Taylor, Barn, court where the bail is given, even though an attorney of another
B^' ?'^^n*'" ^' court happen to be one of the bail ; for the statute empowers no
1923! Morris other court to do equitable justice between the parties.
V. Rees, 2 Black. II. 838. How v. Bridgwater, Barn. 117. ||And this though the action is liy
the. sheriff in the K. B., 8 Term 11.152.; alitor in C. P. and Exchequer. 1 H. Black. 631.
8 Price, 574., those courts holding the statute not to apply to an action by the sheriff, who
may sue on the bond at common law. The bail cannot take advantage of" the action being
brought in a different court on non est factum^ hut should apply to the court by motion.
2 Camp. 596. Q.U. Whether it could be pleaded specially ?||

Kitson V. Faeo^ The under-sheriff may assign the bond, but his clerk cannot.
Stra. 60. IjJierf wrfe 4 Camp. 36. 5 Barn. & A. 243. Tidd. .300, cowfm. ||
Gregson v. The sheriff may assign the bond out of the county; and the

^f^/'R*^' action upon it may be brought either in the county where the

145V. 2*Stra. assignment was made, or in that where the bond was taken.

727.

Neat V Mills There must be two witnesses to the assignment, else the bond

Fortesc.371. is void. But (a) it is not necessary to set forth this or any other

(a) Lease y. circumstance of the assignment in a declaration on the bond, or

^°^^}y!^}- to make a profert of the assignment.
121. ]\Iiftlmv. -^ -^ «=>

Morgan, 2 Ld.Raym. 1564.

Whiskard v. Neither is it necessary to state that the debt was sworn to, or

Wilder, 1 Burr, writ marked ; for these omissions do not avoid the bond ; though

330. ijBut the sheriff, or perhaps the plaintiff j may be punishable for them.

if there is an -^^^ r\ee({ it be shewn that the defendant in the original action

averment 01 .i/7\r.i • 11-.*

an affidavit it ^as arrested (6) ; tor the arrest is not traversable.]

must be produced and proved. Webb v. Heme, 1 Bos. & Pull. 231. || (b) Watkins v. Parry,
1 Stra. 444. Haley v. Fitzgerald, 1 Stra. 645.

Thompson v. 11^^ ^^^^ bail-bond be dated and made after the return pf the
Rock,4Maule writ, it has been held that advantage may be taken of it, on the
& S. 338.; plea of wow est factum; for the court said, that if the matter were
Wh'^l^^^d 1 ' specially pleaded, the plea must conclude et sic non estfactwn,
case 5 Coke and that such special non est factum is never now necessary.
R. 242. cant., and the learned note of the editor of the last edition, and the authorities cit • '
by him, from which it appears that the conclusion of the special plea in such case would i >
have been dc non est factum, but " so the said bond is void;" and that as the defence d( ;
not impeach the execution, but shews the bond, though well executed, to be void by the opi
ation of the statute, the plea should be special as in cases of usury, gaming, &c. 5 Coke :
243. note (c), Fraser's edit. ; and see 2 Camp. 396.

Moody V. Final judgment may be entered in an action on a bail-bord

Phea^m, 2 without a writ of enquiry. ||

BAIL

[ 483 ]
BAIL IN CRIMINAL CASES.

TN all criminal cases, in which it seems doubtful, whether the 2 Inst. 189.

accused be guilty of the offence or not, bail is regularly to be v p p

allowed : and it is a general rule, that whosoever is judge of the ^^^ iiSee/jo*'^
offence, may bail the offender. p. 488.11

(A) In what Cases it is grantable by a Sheriff.

(B) Where by a Justice of the Peace, Hand a Constable

in the Metropolis. |1

(D) Where by the Court of King's Bench.

(E) Where by the other Courts of Westminster.
[(E 2.) Where by the House of Lords.]

(F) What shall be said to be sufficient Bail.

(G) The Offence of taking insufficient Bail.

(H) The Offence of granting it where it ought to be
denied.

(I) The Offence of denying, delaying, or obstructing
it, where it ought to be granted.

(K) In what Form it is to be taken.

(L) What shall forfeit the Recognizance.

(A) In what Cases it is grantable by a Sheriff*.

T> Y the common law, according to some opinions, the sheriff Vide 2 Hawk.

without any writ might ex officio, as principal conservator of f'S^}*^'
the peace [a), bail any person arrested on suspicion of felony ; and stable had 'the'
it is certain, that by the common law, he might bail any ]ike power,
person who was indicted before him at his torn for felony, or any vide 2 Hawk.

other crime that is bailable, (b) ^'9'.^*^*,.

^ _ And how far

iliis power is taken away by those statutes which empower justices of the peace to admit per-
ms to bail on an accusation of felony, and particularly prescribe in what manner they shall
1 ) it, vide ibid, {b) But this power is now taken away by 1 E.4. c. 2., by which it is enacted,
that the sheriff shall not proceed on such indictment, but shall remove it to the next sessions
of the peace. Hawk. P. C. 106. 2 Hawk. P. C. 148.

Also bail is grantable by a sheriff by virtue of the following Co. Bail and
writs. 1. By that of odio et atia, by which a person committed Mampnze,
for the death of a man, might on an inquest taken by the sheriff, p c'l^s***
if he were found to have done the fact by misadventure, or sc Haw'k.P.C.
(U'fendcndo, be mainprized by twelve men, upon the writ dc po^ ii4.
neiido in ballium; but this writ seems obsolete at this day.

I i 2 -'dly, By

484

103, 104.

2 Hawk. P. C.
148.

F. N. B. 68.
C. Register,
78,79. sBliick.
Cotnin. 129.
Vide head of
Wiits.

West. 1. c. 15.
(a) This sta-
tute beginning
with interior
officers, ex-
tends not to
Jiulges of su-
perior courts.
2 Inst. 185,
186. But
though the
superior courts

BAIL IN CRIMINAL CASES.

2(lly, By writ of mainprizc, which of late has been disused,
but seems still in force, and may be brought by persons bailable,
as those who are imprisoned for a slight suspicion of fvlony, or
indicted of larceny, before the steward of a leet, or of a trespass
before justices of the peace, Sfc.

3dly, That of homine replegiando^ whereon if he return that
the plaintiff is essoigned, he may by capias o^ wii/iernarn imprison
the defendant, whether he be a peer or commoner, till the
plaintiff shall be replevied.

By Westm. 1. cap. 15. it is enacted as followeth : " Foras-»
" much as sheriffs and others («), who have taken and kept iri
" prison persons detected of felony, and incontinent have let out
" by replevin such as were not replevisable, and have kept ii|
" prison such as were replevisable, because they would gain of
" one party and grieve the other; and forasmuch as before thii;
" time it was not determined which persons were repievisabk-
" and which not, but only those that were taken for the death
" of a man [b), or by commandment of the king (c), or of thv.
" justices [d) for the forest {e) ; it is provided, and by the king-
wkhln^h"*^*^'^ " ^""ini''»»t^ed, that such prisoners as before were outlawed (5-),
purview of the " ^"^ ^'^^'^y which have abjured the realm (Ji), provers, and such
" as be taken with the manner (/), and those which have broken"
" the king's prison (^), thieves openly defamed and known (Z),
" and such as be appealed by provers, so long as the provers ba
" living (if they be not of good name) and such as be takeii
" for house-burning feloniously done, or for false money, or for
" counterfeiting the king's seal(w), or persons excommunicate [n)^
" taken at the request of the bishop, or for manifest offences [o]y
" or for treason touching the king himself, shall be no wise re-
" plevisable by the common writ, nor without writ; but suc!i
" as be indicted of larceny by inquests taken before sheriffs or
" bailiffs by their office, or of light suspicion, or of petit larceny
" that amounteth not above the value of twelve pence, if they
" were not accused of some other larceny afore-time (7^), or ac-
" cused of receipt of thieves or felons, or of commandment, or
" force, or of aid in felony done, or accused of some other trespass,
" for which one ought not to lose life or member, and a man
" approved by a prover, after the death of the prover (if he be
" no common thief nor defamed) shall be henceforth let out by
*' sufficient surety, whereof the sheriff will be answerable, and
" that without giving aught of his goods." {q)
bail any person for offences declared irreplevisable by this statute. Vide infra, (b) For this
vide 2 Hawk. P. C. 95., and the statutes of Glouc. c. 9., 3 II. 7. 1. C^) This exception is not
to be applied generally to every command of the king, but only to such as proceed from h'ln,
in person, or from his privy council. 2 Hawk. P. C. 151.* (d) This is not to be understood

statute, yet
they will al-
ways in their
discretion pay
a due regard
to the rules
prescribed by
it, and not
admit a per-
son to bail
who is ex-
pressly de-
clared by it to
be irreplevis-
able, witiiout
some particu-
lar circum-
stances in his
favoTir.

2 Hawk. P. C.
175. — And by
the 1 & 2 Ph.
& M. c. 13.
justices of the
peace shall not

* With respect to the command of the king or his council, the power o{ secretary of state
to commit, &c. the editor would refer the student to the cases of Entick, clerk, v. Carringtun
and others. 2 Wils. 275. 1 1 St. Tr. 517. ; and the case of Money et d. v. Leach, in Err >:
in B.R. 5 Burr. 1742, &c. ; also vide the King and Wilkes, 2 Wils. 151., &c. ; the case t
Crosby, Esq. Mayor of London, 5 Wils. 188., &c. As to a commitment by the Commons,
vide post.

(B) Wliere hy a Justice of the 'Peace, 8^c. 485

of ordinary commitments by such justices for safe custody, but of imprisonments by their abso-
lute command, by way of punishment, as for contempts and such like matters, which lie rather
in their discretion than in their ordinary power. 2 Hawk. P. C. 151. S. P. C. 7.>. Dalt. c. 14.
K N. B. 251. 24 E. 3. 33. pi. 25. Roll. R. 134. {e) They must be forests, strictly such, and
not parks or chases ; but it is not material whether the forest be the king's or a subject's.
Register, 77. 4 Inst. 514, Co. Lit. 2. a. 233. a. F, N.B. 67. Plowd. 124. Fii</t' the 1 E. 3.
c. 8., and 7 R. 2. c. 4. That no man shall be imprisoned by any officer of the forest wUhout due
indictment, or being taken with the mamter, or trespassing in the forest. For the explanation of
which, vide 2 Hawk. P. C. 152. And for what shall be said a taking with the manner, vide
Carth.77, 78. (g) Yet the King's Bench may in discretion bail a man upon an outlawry of
felony; as where an error is alleged in the proceedings, &c. 19H.6. 2. a. 2 Hawk. P. C.
154. Fide title Outlawry, {h) For this vide 2 Hawk. P.C. head of Approver, (i) Or rather
Maincr ; that is, with the thing stolen as it were in their hands. Hawk. P. C. 101. 2 Hawk.
P- C. 154. {k) Also they who have broken any other prison. 2 Inst. 188. 2 Hawk. P. C. 154.
{/) The judjjment whereof must be left to the discretion of the person who hath power to bail
them. 2 Hawk. P. C. 154. (?m) Persons taken for arson, or for false money, or for falsifying
the king's seal, or for treason which touches the king himself, are, in respect of the heinousness
of their offence, excluded from replevin, especially if they be in actual custody ; but yet such,
according to the cirairastances of their cases, may be bailed in the King's Bench. 2 Hawk.
P. C. 156. (n) But if a person appear to be imprisoned for an excommunication, in a cause
whereof the spiritual court hath no cogniaance, he may be delivered 'either by habeas corpus,
or by quashing or superseding the writ of excommunicato capiendo. 2 Hawk. P. C. 1 54.
(o) Must be intended of inferior crimes of an enormous nature under the degree of felony;
the judgment whereof seems to be left to discretion. Vide 2 Hawk. P.C. 155. (/j) But how
far it must appear that those excepted out of the statute are of good reputation, and innocent
of the fact, vide 2 Hawk. P. C. 159. And that it must be left to the discretion of the person
who has the power of bailing them, (q) This is to be understood of accessories before
and after to capital offences, with these restraints, that the persons so accused are of good
reputation, and under no violent presumptions of guilt. 2 Hawk. P. C. 159., and 31 Car. 2.
c. 2. par. 21.

II But by the 7 G. 4. c. 64. § I., " An Act for improving the 7 G.4. c. 64.
** Administration of Criminal Justice in England," the above ^
provisions are repealed (as well as those respecting bailing per-
sons on criminal charges in 23 Hen. 6. c. 9. 3 Hen. 7. c. 3. § 2.
25 Hen. 8. c. 3. 32 Hen. 8. c. 3. 1 & 2 Ph. & Ma. c. 13.) ; and
see the provisions as to bailing persons charged, made by that
act, posi {B).\\

(B) Where by a Justice of the Peace, Hand a Constable
in the Metropolis. ||

TT seems clear, that wherever justices of peace have power to H.P. C. lOb.

hear and determine any offence which is bailable witliin the ^°f^: •^"''•
statute Wcstm. 1., anyone of such justices seems consequently to ^ q Lamb"^*^*
have power to bail any person indicted at the sessions for such 347. 2 Hawk,
ofience, because every such justice is a judge of the court which P-C. I60.
is to determine it.

Also every justice of the peace has a discretionary power of
admitting persons to bail who have given a dangerous wound.

But the power of justices in admitting to bail, is chiefly regu- - IIawk.P.C.
lated by acts of parliament ; to which purpose it is recited by ^^^*
1 R. 3. cap. 3. " that divers persons had been daily arrested and i R. 3. c.5.
*' imprisoned for suspicion of felony, sometime of malice, and
** sometime of a light suspicion, and so kept in prison without
** bail or mainprize, to their great vexation and trouble ; and
** thereupon it is enacted, that every justice of the peiice in

I i 3 " every

48t> BAIL IN CRIMINAL CASES.

" every shire, city and town, may, by his or their discretion,
*' let such prisoners and pei'sons so arrested to bail or mainprize,!
** in like form as though the same prisoners or persons were
" indicted thereof of record, before the same justices at their
" sessions."

i H. 7. c. 3. But this statute, so far as it gives such power to a single justice,

is repealed by 3 H. 7. c. 3. which enacteth, " that justices of
" the peace, or two of them at the least, whereof one to be of
" the quoi-iinif have power to bail any person mainpernable by
*' law, to their next general sessions, or to the next general gaol-
*' delivei-y, as well within franchise as without ; and that thfl
*' same justices, or one of them, shall certify the same to such
" sessions or gaol-delivery, on pain of 10/." *

But these statutes having been often abused by the justices of
the peace bailing persons in the name of two justices, where one
only was present, and for offences not bailable ;

1 & iiPh. & It is enacted by 1 & 2 Ph. & Mar. c. 13. " that no justice

c. 13. «.' gj^^ij Ij^ji ^j^y person for offences declared to be irreple-

** visable by Westm. 1. and that no person arrested for man-
** slaughter or felony, or suspicion thereof, shall be let to bail or
** mainprize by any justices of the peace, if it be not in open
" sessions, except it be by two justices at the least, and one to
*' be of the quorum^ and the same justices to be present together
" at the time ; which bailment or mainprize they shall certify in
** writing, subscribed or signed by them at the next general
** gaol-delivery; and such justices, before such bailment for
** felony, shall take the examination of the prisoner, and the in-
*' formation of them that bring him, of the fact and circum-
** stances thereof; and shall put in writing so much thereof as
" shall be material, before they make the bailment ; and shall
" certify such examination and bailment to the next general
*' gaol-delivery ; and shall have authority to bind all such by
** recognizance or obligation, as do declare any thing material to
*' prove the said offences, to appear at the next general gaol-
*' delivery, and to give evidence, S^c. and shall certify the said
*' evidence and bonds, ^c before the time of the trial ; and if
" any justice of quorum shall offend against this act, he shall be
" fined in discretion by the justices of gaol-delivery, on proof by
*' examination before them," 4*<^. But it is provided y " that justices
*' in Middlesex, and in cities, boroughs, and towns corporate,
*' shall have authority to bail prisoners in such manner as
*' was before accustomed; and also shall take examinations and
** bonds as aforesaid, upon every bailment, and certify the
" bailment-bond and examination at the next general gaol-
** delivery."

fiHawk. P.C* The authority given to one justice of the peace by 1 R. 3. to
admit persons to bail for felony, being repealed by 3 H. 7. c. 3.
and 1 & 2 Ph.& Ma. c. 13., one justice of the peace cannot ad-
mit persons to bail, unless it be for an offence directly tending
to a breach of the peace, the restraint whereof is the chief
end of his office ; or for an offence by statute put under the

cognizance

163.

(B) Where by a Justice of the Fc ace ^&^c, 487

cognizance of one justice ; or for an offence indictable at the
sessions.

But though the statute of 1 & 2 Ph. & Ma. c. 13. has pre- 2 Hawk. P. C.
scribed the statute of Westm. 1. c. 15. as a pattern for justices to 164.
follow in relation to bail, and it therefore follows, that a person
under an actual arrest for any crime declared to be irreplevisable
by that act cannot be bailed by any justice, yet if a person at
large be only accused of any such crime on a slight suspicion,
before a justice of the peace, it seems that the justice ought not
to commit him, but ought to take surety from him to appear
before a proper court.

Also the statute of 1 & 2 Ph. & Ma. c. J 3. expressly mention- Ihid. I64.
ing the bailing of persons for manslaughter, as well as for other |j°p v.' ^^^'
felohies, it is clear that justices of the peace may, by force Dalt. c.ii4.
thereof, safely bail any person imprisoned on a slight suspicion Lamb. 546.
of a fact, appearing to be no higher an offence than manslaughter ; 2 Inst. .314.
and much more if it appear to amount to no more than homicide
by misadventure, or in self-defence ; but the justices ought to be
cautious the offence does not amount to murder ; also that
there be no violent presumptions that the party did the fact; for
if any such appear, the party ought not to be bailed, though the
offence amount to no more than homicide by misadventure or
self-defence.

II It is settled, after elaborate argument and research, that a Butt v. Co-
justice of the peace has jurisdiction to issue a warrant for the "?"*» iBro.&
apprehension of a person charged with publishing a libel, and, 4 q^Moo 195.
in default of his finding sureties to answer for the offence, he g. c.
may be committed to prison.

By 1 & 2 G. 4. c. 218., commonly called the Metropolis Po- 1 & 2 G. 4.
lice Act (§28.), it is enacted, that within the limits to which c. 218.
the jurisdiction of the justices thereby recognized extends, it
shall be lawful for the constable or headborough attending at
any watchhouse, between the hours of eight in the afternoon
and six in the forenoon, to take bail by recognizances, without
fee or reward, from any person brought into his custody, with-
out warrant of a justice, charged with any petty misdemeanor,
if such constable shall deem it prudent, for the appearance of
the party at any of the public police offices at an hour specified;
and that such recognizances shall be of equal obligation as if
the same had been taken before any of his majesty's justices of
the peace.

By 7 G. 4. c. 64., " An Act for impi'oving the Administratiort 7 G. 4. c 64.
" of criminal Justice in England" all the statutes respecting
bail on Criminal charge sare repealed; and by ^ 1. it is enacted
as follows : — " Whereas it is expedient to define under what
" circumstances persons may be admitted to bail in cases of
" felony, and to make better provisions for taking examinations,-
" informations, bailments, and recognizances, and returning the
" same to the proper tribunals: And whereas the technical
" strictness of criminal proceedings might, in many instances,
" be relaxed, so as to ensure the punishment of the guilty, with-

I i 4 " out

488 BAIL IN CRIMINAL CASES.

** out depriving the accused of any just means of defence, anc
" the administration of justice in that part of the United King-
*' dom called Engla7id might, in other respects, be rendered
" more effectual ; be it therefore enacted, that where any
*' person shall be taken on a charge of felony, or suspicion
" of felony, before one or more justice or justices of the
*' peace, and the charge shall be supported by positive and
" credible'evidence of the fact, or by such evidence as, if not
" explained or contradicted, shall in the opinion of the justice
" or justices raise a strong presumption of the guilt of the per-
" son charged, such person shall be committed to prison by such
" justice or justices, in the manner herein-after mentioned; but
" if there shall be only one justice present, and the whole evi-
" dence given before him shall be such as neither to raise a
*' strong presumption of guilt, nor to warrant a dismissal of the
*' charge, such justice shall order the peioon charged to be de-
*' tained in custody, until he or she shall be taken before two
*' justices, at the least; and where any person so taken, or any
*' person in the first instance taken before two justices of the
** peace, shall be charged with felony, or on suspicion of felony,
** and the evidence given in support of the charge shall, in their
** opinion, not be such as to raise a strong presumption of the
" guilt of the person charged, and to require his or her com-
*' mittal, or such evidence shall be adduced on behalf of the
" persons charged as shall, in their opinion, weaken the pre-
" sumption of his or her guilt, but there shall, notwithstanding,
" appear to them in either of such cases to be sufficient ground
" for judicial enquiry into his or her guilt, the person charged
" shall be admitted to bail by such two justices, in the manner
*' hereinafter mentioned : provided always, that nothing herein
** contained shall be construed to require any such justice or
*' justices to hear evidence on behalf of any person so charged
*' as aforesaid, unless it shall appear to him or them to be meet
*' and conducive to the ends of justice to bear the same."

2. " And whereas it is expedient to amend and extend the
*' provisions of two acts, the first passed in the first and second
" years of King Philij) and Queen Maty, intituled j^n Act ap-
§ 2, " pointmg an order to justices of peace for the bailment of pii-

*' soners ; and the second passed in the second and third years
'* of the same reign, intituled An Act to take an examination
** of prisoners suspected of manslaughter or felony; be it there-
" fore enacted, that the two justices of the peace, before
" they shall admit to bail, and the justice or justices, before he
*' or they shall commit to prison any person arrested for felony,
** or on suspicion of felony, shall take the examination of such
*' person, and the information upon oath of those who shall
" know the facts and circumstances of the case, and shall put
" the same, or as much thereof as shall be material, into writing ;
" and the two justices shall certify such bailment in writing ;
" and every such justice shall have authority to bind by recog-
" nizance all such persorii; as shall know or declare any thing

" material

(D) Wfiere hy the Court of King's Bench. 489

*' material touching any such felony or suspicion of felony, to
" appear at the next court of oyer and terminer, or gaol-
" delivery, or superior criminal court of a county palatine or
" great sessions, or sessions of the peace, at which the trial
*' thereof is intended to be, then and there to prosecute or give
" evidence against the party accused; and such justices and
" justice respectively shall subscribe all such examinations, in-
" formations, bailments, and recognizances, and deliver or cause
" the same to be delivered to the proper officer of the court
" in which the trial is to be, before or at the opening of the
« court." II

JUSTICES of gaol delivery, not being within the restraint of q^^^ . .-.

the statute Wcstm. 1. c. 15., may bail persons convicted before H.P. C.ioi.

them of homicide by misadventure or self-defence, the better to F. N. B.246.

enable them to purchase their pardon. S.P. C. 15.

* * 2 Hawk. P. C.

Also it seems, that in discretion they may bail a person con- 3^^*

victcd before them of manslaughter, upon special circumstances ; r.' * ' ,^1*

.^ , . , . , . o 1 • 1 ^ -/-111 Crotnpt. 153.

as, II the evidence against him were slight ; or, it he had pur- 2 Hawk. P. C.

chased his pardon. 165.

Also, if an appellee plead an excommunication in disability of s_ p q -72.
the plaintiif, it seems they may bail him till the plaintiff shall be 2 Hawk. P. C.
absolved ; for otherwise the appellee might lie in prison for ever, 106.
without having an opportunity of coming to his trial.

And where such justices have power to admit persons to bail, 2Hawk.P.C.
it seems that they may do it after their sessions is over, as well 165.
as during their sessions.

[Although the statute of 3 Hen. 7. c. 1. is express, that on Kelyns, 25.
an acquittal of murder within the year at the king's suit, the p jin*^^'*
justices cannot discharge, but are bound ex officio to hold to bail, 59 G. 3^0.46.
yet it has been the practice at the Old Bailey, and in all the cir- appeals of
cu'its in England, not to hold the party to bail, unless an appellant murder, trea-
appear, and apply by motion for bail.] :?e"kbolS/

See m}tb, tit. Appeal.\\

(D) Where by the Court of King's Bench.

HIS court, by the plentitude of its power, may in discretion Vaugh. 157.

admit persons to bail, though committed by other courts, 6 Mod. is,

for Climes not bailable by those courts, on consideration of the ^j^^ ^sV.'

nature and circumstances of the case. pi. 12. Holt,

590. 2 L(l. Raym. 978. 12 Mod. 102. 155, 1 56. Raym. 581-

But liere it must be observed, that with respect to the nature 2 Inst 185,

186. 189.

104.

of the offence, although this court is not tied down by the rules }| p ^
prescribed by the statute of Westminster I. c. 13., yet it will in galk.ei.
discretion pay a due regard to those rules, and not admit a .-jBuUt. lis.

person

490

BAIL IN CRIMINAL CASES.

2 Hawk. P. C
175. 5 Mod.
454.

Kelynge, 90.
Dyer, 79.
Bulst.87.
2 Hawk P. C.
175.

person to bail who is expressly declared to be in-eplevisable,
without some particular circumstances in his favour.

And therefore, if a person be attainted of felony, or convicted
thereof by verdict general or sjiecial, or be notoriously guilty of
treason or manslaughter, Src. by his own confession, or other-
wise, he is not to be admitted to bail, without some special
motive to induce the court to grant it.
2 Hawk. P.C. As where a person taken by a capias tttlagatum on an appeal
175. So for any of felony, by the name of J. S. gentleman, pleads that his name
^ o trwV" ^^ •^^ '^' y^o'^^"' ^"d "o' gentleman, and so he is not the same
especially if it person that was outlawed ; in which case the court in discretion
be an appa- may bail him ; for until the plea be determined, it appears not

rent one. Vide whether he were the person intended or not.
5H. 7. 16. ^

pi. 7. 2 Inst. 188. H.P. C. 101. Sid. 316.

Cromp. Jus- So if a man be convicted of felony upon evidence, by which it

*'h' ^t^p r P^^^^^^y appears to the court that he is not guilty of it; in which
^^^ ' ' case even the justices of gaol-delivery may bail him.

5 Mod. 455. Or where a prosecution is unreasonably delayed ; or where

Sid. 78. Bulst. the prisoner may be in danger of losing his life, either by famine,
K* b 305^ ^^^ ^^ dangerous distemper, ^c, unless he be bailed.
Stra. 4. 858. Andr. C4. Latch. 12. Cro.Jac. 556. Co. Lit. 289. [The indisposition, upon
which the court will bail, must be a present indisposition arising from the confinement, and not
from any constitutional or family distemper, or from the act of the prisoner. R. v, Wyndham,
1 Stra. 4. See too Cowp. 353.]

The Court of King's Bench hath always admitted persons to
bail imprisoned by the king's special command, or by order of
the privy council, where the commitments expressed the crime
or cause for which the party was committed, on the like circum-
stances, on which, in discretion, it will grant bail on other com-
mitments.

5 Mod. 78.

Sid. 143.

Palm. 559.

Also where it

hath appeared

that persons

have been

committed by

colour of an authority claimed under an illegal patent, this court hath always discharged the

persons so committed without bail. Leon. 70. Andr. 297. 2 Hawk. P.C. 166.

(a) 33 H. 6. But it was formerly holden by many (a), and at length ad-

28. b. Andr. judged in Sir John Corbels case (b), that persons committed by
the special command of the king, signified by warrant from the
lords of the privy council, were not bailable without the king's
consent, unless there appeared some extraordinary circumstances
in the case ; it being to be presumed that the king would not
exert his prerogative in such a manner, without some good
reason for the safety of the state, not fit to be divulged ; but this
being thought to be a great strain of the prerogative, and to
make the liberty of the subject precarious, and contrary to the
purport of magna charfa, and many other statutes, which de-
clared that no man shall be imprisoned but by due process of
law, <§-c., occasioned the petition of right, 13 Car. L and the
16 Car. 1. c. 10., by which it seems now established, that where
commitments by the privy couucil do not with convenient cer-
tainty express the crime alleged against the party, he ought to
be bailed.

The

298. Roll. R.
134. 192. 219.
Moor, 859.
F. N. B. 66.
S. p. C. 72.
(b) See the ar-
guments on
the habeas
corpus^ con-
cerning loans,
and Rush-
worth's Col-
lections, part I .
fol.458. Vide
Cro. Car. 507.
579. 593.

(D) IVhere by the Court of King's Bmch. 491

The great regard which is so justly due, and which has always 2 Hawk. P. C.
been paid to the proceedings of either house of parliament, who ^^^•
are the guardians of the liberty of the subject, makes it somewhat
doubtful in what cases the Court of King's Bench will discharge
or bail a person committed by either of those houses.

Hence no precedent can be found, where the Court of King's Id. ibid.
Bench has bailed a prisoner, sitting the parliament, on a com-
mitment, which, on the return of it, stands indifferent whether it
be strictly legal or not.

And therefore, in the Lord Shaftesbtm/s case, who, upon his ^^^'^v\^^^*

habeas corpus in the King's Bench, was returned to have been , t,v*Lnf ilr *
11 1 TT f T in 1 . 1 lrreem.453.

committed by the House ot Lords, tor a high contempt com- 2St.Tr.6is.

mitted against the house, the court would not take notice of any S. C. 2 Show,

exceptions against the form of the commitment; as that it was ^^- [See con-

too general, and did not express the nature of the contempt, or thiT doctrine

in what place it was committed, S^c. ; for that it shall be presumed in Murray's

that it was such, for which the lords might lawfully make such case, 1 Wiis.

an order, and no other court shall prescribe to them in what 299. Brass

form they ought to make it. sWik 'isr^'
2 Black. R. 755. ; and part of Lord Cowrfen's argument in the case of Entick v. Carrington,
1 1 St. Tr. 317. ;] jjand see The King v. Flower, 8 Term R. 314.||

But a person committed for a contempt, by the order of either 2 Hawk. P. C.
house of parliament, may be discharged by the Court of King's ^^^' *^^^*^T'*
Bench, after a dissolution or prorogation of the parliament, 245 Lev. lei!
whether he were committed during the sessions, or afterwards; Mod. 155.157.
for that all the orders of parliament are determined by a disso- (a) But Q«.
lution or prorogation (fl') ; and all matters, before either house, rorthoughthe
must be commenced a-new at the next parliament, except only [|jg parliament
in a few cases; and if the subject should be deprived of his was the chief
liberty till the next parliament, which perhaps may not meet reason why the

again in many years, no one could say when his imprisonment i^arl of l^a/j^y
° , . T •' '' •' ^ was bailed, yet

would end. the binding

him to appear at the next sessions of parliament was an affirmance of the commitment, and a
plain proof of the opinion of the court at that time, that the commitment was not avoided or
discharged by the prorogation of the parliament. Carth. 132, 133. Vide Skin. 56. that the
Earl of Danby was not bailed.*

* In Skin. 162, 165. there are further arguments in his favour; but in Carth. 132. it is
said he was bailed when Ch. J. Jefferies came in. See Ch. J. HoW^ opinion in Salk. 503.

And though the Court of King's Bench may in their discretion Kaym. 38 1.
bail a lord upon an impeachment of high treason, after a disso- Lord Stafford 9
lutiou or prorogation of the parliament, yet may they refuse it. Court of
not as a matter out of their power, but as a thing which they are King's Bench
not bound to do, and improper on consideration of the whole bailed the
circumstances of the affair. tchnihi "*"

whom the Commons had committed for high treason, the attorney-general not opposing.
4 St. Tr.398.]

The Earl o^ Salisbury was impeached for being reconciled to Carth. 131,
the church of i?07Kc, by the convention that was turned into a !^" g q^'
parliament 1 W. & M., and lay in the Imver till the next par- -^^^ of Salw-
liament, which being adjourned for two months, he moved to bury's case,
be discharged on the act of Oblivion, wherein neither his crime

nor

492

BAIL IN CRIMINAL CASES.

(a) For which
are cited
PJow. 484.

8 Co. 68.
4 H. 7, 8.
Rast. Ent. 665.

(b) But the re-
porter makes
a queer c, Whe-

nor his person were excepted, but clearly within the act of Par-
don, or that he might be bailed. As to the act of Pardon, the
court held, that it should be pleaded with proper averments (a),
which could not) be done here, because there was nothing be-
fore the court upon which to ground such plea (b) ; and that as
to the bailing him, this being a short adjournment, the applica-
tion for that purpose should be to the parliament.

ther he might not plead it in discharge of the matter returned by the habeas corpus, and enter
it on the same roll. Garth. 132.

In former days, and particularly at the time when Sir Edward
Coke was Chief Justice, several persons committed to the Fleet by
the Lord Chancellor, were bailed by the Court of King's Bench,
upon exceptions to the generality (c) of the form of the commit'
Orsettingforth ments.
only the command of the Lord Chancellor as the ground of the imprisonment, without men-
tioning any crime at all. Moor, 859. Roll. II. 219. Or mentioning the crime in general
terms ; as for a contempt to the Court of Chancery, without mentioning what the contempt
was. Roll. R. 192. 218.

Roll. R. 111. Also one Glanvil, who was generally committed by the com-

mand of the Lord Chancellor, without setting forth any cause of
such command, seems to have been bailed upon examination of
the merits of the decree, for disobeying whereof he was in truth
committed ; whereby it appeared that the decree related to a
matter before adjudged at the common law; which was thought
contrary to the purport of 27 E. 3. c. 1., and 4 H. 4. c. 23. But
this proceeding being resented by the Lord Chancellor, the said
Glanvil was afterwards recommitted by him for the same matter,
and yet was on another habeas corpus bailed a second time by
the Coi^rt of King's Bench.

But as there have been no such proceedings of late days, the
disuse of them has certainly lessened, if not wholly removed,
the force of these resolutions, especially as it is now establish-

Moor,
2 Bulst.
Cro. Jac.
5 Bulst.
Roll. R.
Vide Da-

219,
838
501.
545.
115.
277.
lison, 81
5 Leon. 1 8.

5J Hawk. P. C.
172. Abr.Eq.
150. (rf) A
commitment

from Chancery ^^» ^^^^ ^ court of equity can give relief after a judgment at

for disobe
dience to a
decree is good,
without shew-
ing what the
decree was.

1 Mod. 155.
Moor, 840. S. P,
Vaugh. 157.
6 Mod. 73.
5Salk.91.pl. 1.
284. pi. 12.
Holt, 590.

2 Ld. Ravm.
9^8. 12 Mod.
102. 155, 156.
2 Hawk. P. C.
173. (e) Roll.

law ; for otherwise it would have no power of moderating the
rigour of the law, it being in many cases very doubtful what the
law is before it be determined ; the superior courts therefore
will put the most favourable construction [d) on another's pro-
ceedings, and not intend that they acted beyond their jurisdic-
tion.

The Court of King's Bench, having the supreme controwl of
all inferior courts, may in discretion admit persons to bail com-
mitted by such courts, upon consideration of the whole circum-
stances of the case, as the length and hardship of the imprison-
ment (e), the enormity or dangerous tendency, or notoriety, or
small consequence of the offence, or obstinacy ^of the offender (^i^),
or the dignity of the court by which he was committed (/z), and
other such like circumstances, of which the court will receive

Rep. 218. 357. information by suggestion or affidavit, being consistent with the

Lftch*^!''^^"' ^^^^^^ of the habeas corpus, {i)

(g) 5 Bulstr. 48 to 54. (h) For this vide 2 Hawk. P. C. 1 75. Vaugh. 139. 2 Bulstr. 159. Cro.

Jac. 219. Cro. Car. 579, Sid. 144. 286. 520. Salk. 348. pi. 2. 5 Mod. 19. March, 52.

(i) That

(E) IVJiere by tite oilier Courts of JVestminster, 493

(i) That no one can in any case controvert the truth of the return to a habeas corpus, or plead
or suggest any matter repugnant to it ; yet a man may confess and avoid such return, by
admitting the truth of the matters contained in it, and suggesting others not repugnant, which
take off the effect of them. Sid. 287. 5 Mod. 523. 454. 2 Jones, 222. 2 Hawk. P. C. 1 15.
[The King's Bench may bail in all cases at their discretion. Com. Dig. tit. £ai/(F), 4. Cowp.
■333. ; and they will in general do so in every case not capital : in every capital case where
there is any circumstance to induce a presumption of the prisoner's innocence, and in every,
case where the charge is not alleged with sufficient certainty. R. v. Judd, 2 Term R. 25.5.
R. v. Remnant, 5 Term R. 169. They will, therefore, bail a person acquitted on an indictment
of murder, and afterwards in custody on an appeal, unless the judge certifies a dissatisfaction
with the verdict. Castell v. Bambridge, 2 Stra. 854. So a person committed for manslaughter,
or even murder, if it appear to be no more than manslaughter, on the depositions before the
coroner. R. v. Dalton, 2 Stra. 911. R. v. Magrath, Id. 124.3. So in murder, and pardou
pleaded and allowed, the defendant shall not give bail to answer the appeal, though the heir is
beyond sea, for this is not within the 3 H. 7. R. v. Chetwynd, 2 Stra. 1203. In rape both
principal and accessory! will be bailed, if it appear they do not mean to abscond. R. v. Lord
Baltimore, 4 Burr. 2179. 1 Black. R. 648. S. C. The court is bound ex debito justitia; to bail
an accomplice entitled to the king's pardon. R. v. Rudd, Cowp. 334. But they will not bail
an appellee for nnirder, unless circumstances of delay appear on the part of the appellant.
Castle V. Bambri(fg.^, 2 Stra. 854. Nor a person charged with a highway robbery, if the pro-
secutor attends and swears he is the man, notwithstanding a number of affidavits are produced
to shew an alibi. R. v. Greenwood, 2 Stra. 1138. Or for assisting in the running of contra-
band goods, &c. R. v. Norton, Bunb. 143. Nor will they order, at the instance of the
prisoner, a medical man to attend the person wounded, in order to state his situation for the
purpose of bail. R. v. Sarah Salisbury, 1 Stra. 547. Nor will they bail after a bill for murder,
found, though the fact were plainly manslaughter. Case of Kirk and Case for the murder of
Seymour Conway. M. 12 W. 3. See too 1 Salk. 104. Skin. 68.5. They have refused to bail
on a special verdict on the statute of Stabbing. Sty. 467. 5 Mod. 288. It is said in some
cases never to be allowed in manslaughter till clergy had. Sty. 37 1. Salk. 105. 5 Mod. 288.
But it seems the court of K. B. may bail in this case, though justices of oyer and terminer or
gaol-delivery cannot. Keilvv. 70. 2 Inst. 188. Salk. 61.] ||See Rex v. Massey, 6 Maule & S.
"108.11

II If there appear a corpus delicti on the face of the warrant of TThe King y.
commitment, the Court of King's Bench will not bail the pri- Marks, 3 East,
soner merely on the ground of informality in the warrant, but
they will remand the prisoner.

Where the court think a prisoner ought to be bailed for jhe Kina v.
felony, if he be unable to defray the expense of being brought Jonas Jones,
lip to Westminster for that purpose, they will grant a rule to * ^"'""•^ ').'''•
shew cause why he should not be bailed by a magistrate in ^ Massev '"^
the conniry, -wlih a. certiorari to return the depositions before e Maule &S.
them. II 108.

[It is to be observed, that neither this court nor any other Com. Dig. tit.
court can bail persons in execution, or punished under any Jiai/{F),'2.
statute with imprisonment for their offence. And this is one ]^ ^°^' |^^'
reason why they cannot interfere where a party is committed for sTermR.lDO.*
a contempt.] ||and see Rex

V. Waddington, 1 East, 159.H

II Where the House of Lords had voted the defendant guilty Rex v. Flower,
of a breach of privilege, and committed him to prison, the Court ® ^crniR.3i4.
of King's Bench refused to discharge him out of custody.l)

(E) Where by the other Courts of Westminster.

npiIE Courts of Common Pleas and Exchequer, at any time 2 Inst. 53. 55.
during term, and the Chancery, either in term or vacation, ^^*^- ,|t^"*[-
may by the coinmon law award a habeas corpus for any person j^^| g Andr.

committed

494

BAIL IN CRIMINAL CASES.

297. Dalison, committed for a crime under the degi'ee of felony or treason (a);
81. 3 Leon. 18. and thereupon discharge him, if it shall plainly appear by the
2Mod^'i98 return that the commitment was illegal, or bail him if it shall
[The court of appear doubtful.

C. P. may, by the common law, grant a habeas corpus in all cases of misdemeanour. Wood's
case, .3 Wils. 1 72. 2 Black, R. 745. S. C. Wilkes's case, 2 Wils. 151.] (n) That in some cases
the chancery may by the common law bail persons for felony. 2 Hawk. P.C. 177.

And by the habeas corjytis act, any of the said courts in term-
time, and any judge of the said courts, being of the degree of
the coif, in the vacation, may award a habeas corpiis for any person
liable within the intent of that act, for any crime under the degree
of felony.

Vide infrh, tit.

Habeas

Corjms.

Skin. 683,684.

Dr. Sacheve-
rell's case,
JJom. Proc.
1.5th Jan. 1709.
Case of War-
ren Hastings,
Dom Proc. die
LuncB, 21°
Maij 1787.

[(E 2.) Where by the House of Lords.

•T^HE House of Lords may bail a peer committed upon an in-
dictment for murder, if the indictment be removed before
them by certiorari.

Upon impeachments by the Commons for high crimes and
misdemeanours, the recognizance of bail is taken by order of the
House of Peers, at their lordships' bar, the bail being previously
approved by a committee, to whom it is referred to consider of
their sufficiency. The condition of the recognizance in such
case is, that the criminal shall appear personally before the lords
in parliament, and from day to day, until the further order of
the house.]

141. H. P.C.
97. Dalt. C.14,
That formerly
none under
the degree of
subsidv-men

(F) What shall be said to be sufficient Bail.

2 Hawk. P. C. IM^ person shall be bailed for felony by less than two, and it
- - " " '" is said not to be usual for the King's Bench to bail a man

on a habeas corpus, on a commitment for treason or felony, with-
out four sureties (6) ; the sum in which the sureties are to be
bound, ought to be never less than 40/. for a capital crime; but
it may be higher in discretion, on consideration of the ability and
were admitted quality of the prisoner, and the nature of the offence ; and the
to be bail for sureties may be examined on oath concerning their sufficiency,
by him that takes the bail ; and if a person be bailed by insuffi-
cient sureties, he may be required either by him who took the
bail, or by any other who hath power to bail him, to find better
sureties, and on his refusal may be committed ; for insufficient
sureties are as none.

as had 40s. a year in the county, (b) In felony four persons are required for bail ; but for any
inferior offence two are sufficient. In both cases the number of the bail must be mentioned
in the notice, otherwise the court will reject the whole. Per Lord Mansjield, Rex v. Bolton,
JVI. 25 G. o. Hawk. P. C. 141., notes, 6th edit. Sty. Pr. Reg. 1 10. In the case of the King
V. Judd, though the commitment did not sufficiently charge a felony, and therefore the
defendant was entitled to bail, yet enough appearing to shew an offence of great enormity,
the court insisted upon four sureties. 2 Term R. 255. In an appeal of murder on the civil
side, two bail only are required ; but where it comes on the crown side by certiorari, there
must be four. Castel v. Bambridge and Corbet, 2 Stra. 855.] Ijlt is now the rule to require
four bail in cases of felony. Rex v. Shaw, 6 Dow. & Ry. 154.||

But

any person.
Dalt. c 70. and
114. [And, ac-
cording to
Crompt. Just.
194 a. subsidy-
men were such

(H) The Offence of granting it tvhere it ought to he denied. 495

But justices must take care, that under pretence of demanding 2Hawk. P.C.
sufficient surety, they do not make so excessive a demand, as in i*i«
effect amounts to a denial of bail ; for this is looked upon as a
^reat grievance, and is complained of as such by 1 W. & M.
Sess. 2. ; by which it is declared, that excessive bail ought not
to be required.

[The defendant's attorney may be bail for him ; for the rule R. v. Bowes,
that no attorney or officer of the court shall be bail does not Dougl. 466.
extend to criminal cases.] notes.

II After a defendant has been admitted to bail, the court will Rex v. Salter,
not increase the bail, on affidavits disclosing facts aggravating 2Chitt.R.i09.
the original offence. ||

(G) The Offence of taking insufficient Bail.

F the party bailed by insufficient sureties do not appear ac- S. P.C. 335.
cording to the condition of the recognizance, the justice, <^c H, P.C. 97.
who bailed him is finable by the justices of assise; but if he ap- 2 Hawk. P.C.
pear, it seems that the person who bailed him is excused. jg^^^" '^'"/''"i

And that if a justice admits a person to bail by insufficient sureties, whom he knows not to bo
bailable b}' law, corruptly for lucre or reward, the Court of King's Bench will grant an inform-
ation against liim, as in Rex v. Brooke, 2 Term R. 190.; and see tit. Informaiions ; it is an
offence too for which he may be indicted, vide tit. Indictments.

(H) The Offence of granting it where it ought to be

denied.

nPHE bailing a person not bailable by law, is punishable at 2 Hawk. P. C.

common law, as a negligent escape, or as an offence against 142. S.P.C.

the several fol lowing statutes. ^'' ^"'^ *''•

"^ Jiscape.

By the statute of Westm. 1. cap. 15. it is enacted, "that if the Westm. i.
" sheriff or any other let any go at large by surety that is not c. 15.
" replevisable, if he be sheriff or constable, or any other bailiff
" of fee, which hath keeping of prisons, and be thereof attainted,
" he shall lose his fee and office for ever; and if the under-
" sheriff, constable, or bailiff of such as have fee for keeping of
" prisons, do it contrary to the will of his lord, or any other
" bailiff, being not of fee, they shall have three years' imprison-
" ment, and make fine at the king's pleasure."

And it is enacted by 27 E. 1. commonly called the statute dc 27 E. 1.
Finilms levatis, cap. 3. " that the justices assigned to take assizes,
" 4C' vvhen they deliver the gaols, Src. shall enquire if sheriffs,
" or any other, have let out by replevin prisoners not Kcplevis-
" able, or have offended in any thing contrary to the form of the
" said statute of Westm. 1. ; and whom they shall find guilty they
" shall chasten and punish in all things according to the form
" of the said statute."

And it is further enacted by 4 E. 3. cap. 2. " that at the time 4 e.3. c.2.
" of the assignment of keepers of the peace, mention shall l>e
*' made, that such as shall be indicted or taken by them, shall
*' not be let to mainprize by the sheriflis, nor by none other

" ministers,

496

BAIL IN CRIMINAL CASES.

*' ministers, if they be not mainpernable by law, nor tliat nont;
*' who are indicted shall be delivered but by the common law ;
*' and that the justices assigned to deliver gaols shall have power
*' to enquire of sheriffs, gaolers and others, in whose ward such
" persons indicted shall be, if they make deliverance, or let to
** mainprize any so indicted which be not mainpernable, and to
** punish the said sheriffs, gaolers and others, if they do any
" thing against the said act."

And it is enacted by 1 & 2 Ph. & M. c. 13. " that no justice
" or justices of the peace shall let to bail or mainprize any
" person or persons, which for any offence or offences by them
" or any of them committed, be declared not to be replevised or
" bailed, or be forbidden to be replevised or bailed by the above-
" mentioned statute of Westm, 1. c. 15. And that the justices
" of gaol-delivery of the place where such justices of the peace
" shall be guilty of such offence, upon due proof thereof, by
" examination before them, shall for every such offence set such
" fine on every such justice, as the same justices of gaol-delivery
persons, he " shall think meet."
admitted the party to bail. The prosecutor appeared at the assizes, and found a bill, but the
party accused did not appear, and the court granted an information against the justice, declar-
ing they should not have bailed the man themselves. 2Stra. 1216.

Poph. 96. Justices of the peace, before they bail a man under commit-

9U- \ ^pV "id^' must at their peril inform themselves of the cause for
which he was committed ; for if he were in truth committed for
a cause not bailable by law, it is no excuse that they did not
know that he was committed for such cause.

l&sPh.&M.
c. 15. A jus-
tice of Surry
committed a
man on suspi-
cion of steal-
ing a mare,
and bound
over the owner
to prosecute;
afterwards,
upon examin-
ing two other

143.

14 H. 7. 7.
pi. 19. H.P.C.
143. Dalt.114.

2 Hawk.
145.

P.C.

H.P.C. 97.
2 Hawk. P. C

143.

(I) The Offence of denying, delaying, or obstructing
it where it ought to be granted.

TT is clearly agreetl to be an offence by the common law as
well as by statute, and punishable by indictment as well as
by action, to deny, or delay, or obstruct bail where it ought to
be granted.

But it seems also clear, that he who has power to bail another,
is not bound to demand of him to find sureties, and to forbear
committing him till he shall refuse to find them; but may well
justify his commitment, unless the party himself shall offer his
sureties.

The principal statutes relathig to this offence are the above-
mentioned statute of Westm. 1. c. 15; and the statute de Finiinis,
27 Ed. 1. c. 3. ; and 31 Car. 2. c. 2., commonly called the Habeas
Co7pics act ; by the first whereof it is enacted, " that if any with-
" hold prisoners replevisable after that they have offered suf-
*' ficient surety, he shall pay a grievous amercement to the
" king ; and if he take any reward for the deliverance of such,
" he shall pay double to the prisoner, and also shall be in the
" great mercy of the king." And by the second of the said
statutes it is enacted, " that justices of assize shall enquire if
" sheriffs, or any other, have offended in any thing contrary to

« the

(L) What shall forfeit the Recognizance, 497

" the said statute of Westm. ,• and whom they shall find guilty,
*' they shall punish in all things according to the form of the
** said statute."

[The last-mentioned statute is set out at length infra, tit.
" Habeas Corpus," (B) 4., to which part the reader is referred.]

(K) In what Form it is to be taken.

"'^^/"HERE a person actually present in court is bailed for a 2 Jones, 210.

crime punishable with loss of life or member, it seems to Lev. 106. Sid.

be in the discretion of the court to take a recognizance from ^n. 4 Inst,

each of the bail, either in a certain sum, or body for body, or ^^^j] ^g^g.

both ways ; however, such recognizance of body for body (a), 2 H. H. P. C.

doth not make the bail liable to the same punishment with the 125. H.P.C.

prisoner, but only to be fined, Sec. V' ^'■^'"P-

* •' ' -' Just. 157. a.

and per 2 Hawk. P. C. 1 77. (a) Justices of the peace may take the recognizance in such form.
[But this kind of bail is now in disuse. 2 H. H. P. C. 125.]

But, for a crime of an inferior nature, it seems that the recog- 2 Hawk. P. C.
nizance ought to be only in a certain sum of money, and not thV'<,ourt^on
body for body. motion may

dispense with the principal's joining in the recognizance. Salk. 3. pi. 7. [Where the principal
is an infant or in prison, and so absent, the recognizance is taken of the bail only ; and the
justice or justices grant a warrant under hand and seal to discharge the prisoner out of gaol.
2 H. H. P. C. 126. Burn's Just. tit. Bail. Bail must be taken for a certain time, else it will bo
erroneous. Rex v. Rainer, l Sid. 214.]

II The motion to bail a party for an assault must be made Rex v. ,

before a judge at chambers. || ^ ^^^"- ^•

no.

(L) What shall forfeit the Recognizance.

JF the recognizance be in the usual form, ad standum recto de 2 Inst. 150.

Jelonia pradicta et ad respondendum domino regij and at the 4 Inst. 1 78.
trial the \)SiV\.y stands mute, though it may be reasonably argued n u c m^"
irom the import of these words, that in strictness the recogni- o Hawk. P. C.
zance is forfeited, yet the later opinions hold otherwise; for if a 177, 178.
man's bail, who are his gaolers of his own choosing, do as
" effectually secure his appearance, and put him as much under
the power of the court as if h,e had been in the custody of the
proper officer, they seem to have answered the end of the law,
and to have done all that can be reasonably required of them.

If A. enters into a recognizance that B. shall appear in the 2 Hawk. P. C.
King's Bench such a term, to answer such an information, and j'"' ^'pij,
not to depart till he shall be discharged by the court, and after- ^|j^ Fortesc.
wards a nolle prosequi is entered on that information, and another 358.'
exhibited, whereto he refuses to appear, Sfc^ the recognizance is
forfeited. [But it seemetli, that the recognizance shall not be
forfeited by the party's not appearing in court the first day of
every term, after he hath pleaded to the information, as it may
, be before he hath pleaded.

By statute 4 G. 3. c. 10., reciting that many recognizances 4G.3. c. 10.
had been estreated into the Court of Exchequer, against persons

Vol. I. K k for

498

fl(fl) This
statute is re-
pealed by 7 G.
nations to the

(i) Ca. temp.
Hardw. 237.

200.

(rf) 10 Mod.

278.

lWiIs.315.

BAILIFF.

for not appearing as parties or witnesses, or for not prosecutiiiff
indictments, or otherwise not performing the conditions of such
recognizances ; many of which neglects of duty had happened by
the inattention of ignorant people, it is enacted, " that it shafl
be lawful for the barons of the Exchequer, upon affidavit and
petition to be presented to them by or on the behalf of the
person or persons imprisoned, or liable to be imprisoned on
the forfeiture of any such recognizances, to discharge sucli
person or persons, by order from the said barons, without
any quietus to be sued out for that purpose; for which order
no more than one pound and one shilling shall be taken by
the officer appointed to give out the same : provided that ni)
discharge shall be given on such petitions where any debt is
due to the crown, other than by the recognizances so praye<l
to be discharged; nor in any cases of defrauding his majesty's
revenue by contraband trade, or assaulting his majesty's
officers of the customs or excise in the execution of their
duty, or any person or persons lawfully assisting them therein."
Recognizances in cases of felony are to be certified to the
general gaol-delivery by 1 & 2 P. & M. c. 13. (a)
4. c. 64. (seeaw/e,) and see § 2. as to the returning recognizances and exami-
court where the prisoner is to be tried. ||

Neither the defendant nor his bail can be called upon their
recognizance without notice, except on the day on which the de-
fendant is bound to appear (i): and if the defendants do nt)t
appear on that day, the court will not discharge the recognizance,
although the attorney-general consent to it, but will respite it
to the next term (c) ; for the judges of oyer and terminer are the
proper judges whether recognizances ought to be estreated or
spared, [d)

If a defendant indicted for perjury be acquitted, the bail shall
be discharged from their recognizance on motion, though the
acquittal be not entered on record, for it appears on the^os/^a.j

BAILIFF.

Co. Lit. 61. b.
[See Lam-
bard's Expo-
sition of Saxon
words. Dr.
Johnson saith,
that this word
is of doubtful
etymology in
itself, but bor-
rowed by U8
from the
French
""baUru" See

"O AILY or bailiff, saith my Lord Coke, is an old Saxon word,
which signifies a keeper or protector : and though there be
several officers called bailiffs, whose offices and employments seem
quite different from each other, yet doth something of keeping or
protection belong to them all. Hence the sheriff is considered
as bailiff to the crown; and his county, of which he hath the
care, and in which he is to execute the king's writs, is called iiis
bailiwick ; also his officers, who by his precept execute writs,
are called bailiffs: there are likewise bailiffs of liberties, who :ae
officers under lords who have franchises exempt from the juris-
diction of the sheriff; there are likewise bailiffs of lords o\

mancrs.

(A) Of Sheriffs* Bailiffs.

4Q9

manors, who collect their rents, and levy their fines and amerce-
ments ; also he is called a bailiff who hath the administration or
charge of lands, goods, or chattels to make the best benefit for
the owner, against whom an action of account doth lie for tlie
profits which he hath raised or made, or might by his industry
and care reasonably have made, his reasonable charges and ex-
penses deducted ; there are likewise those termed bailiffs to
whom the king's castles are committed, as the bailiff of Dover
Castle, &c. The chief magistrates in divers ancient corporations
are called bailiffs, as in fysmcJi, Yarmouth, Colchester, &c.
There are likewise officers of the forest who are termed bailiffs ;
but as there is but little said of some of these in our books, and
as what relates to others will more properly fall under other heads,
we shall in this place only consider what we find relating to

(A) Sheriffs' Bailiffs.

(B) Bailiffs of Liberties or Franchises.

too 3 Black.
Com. 344.
Blount's Law.
Diet. tit. Bai-
liff.] By some
opinions a bai-
liff in Magna
Charta, c. 2S.,
signifies any
judge. Vide Co.
Lit. 168. b.
Fide 10 H. 4.
4 Mirror, c. 5.
§ 2. Bracton,
409. Fleta, lib.
2. c. 63. Glanv.
lib. 1. C.9.
Kitch. Retorn.
Brev. 285.
2 Inst. 453. Co.
Lit. 272. Man-
wood, part 1.
p. 113.

(A) Of Sheriffs* Bailiffs.

A SHERIFF'S bailiff is an officer appointed in every hundred qq^ 54 ^

to execute all writs within the hundred, directed to the bailiff is to
sheriff; he is likewise to collect the post-fines (a), fee farms of take the same
the king, ^c. for the sheriff, and to attend the justices of assise °nj^eJ!^siJeriff *^
and gaol-delivery, and justices of peace in their courts. uikes, pre-

scribed by the stat. 27 Eliz. c. 12. But a special bailiti^ or one employed by the sheriff for a
particular time only, as to execute one writ, &c. is not obliged to take the oath. Jones, 249.
9 Lev. 151. But what he doth is considered as done by the sheriff himself; and therefore a
[rescue from him shall be judged a rescue from the sheriff) and his escape the escape of the
jrfieriff, for which the sheriff shall answer, (a) See 32 G. 2. c. 14., whereby he is not to collect
em.

If an under-sheriff takes bond from a bailiff, conditioned to g^jig jg
ive him harmless in executing all processes, Sfc. and on action Stoughton and
jrought on this bond, the sheriff assigns for breach that the Day- [Aileyn,
)ailiff had not executed a certain warrant sent to him upon a '°' ^'j- *j Jj"
)rocess directed to him out of the Exchequer, to levy issues upon „.,(,„ jg.
ertain lands in Z)., and it is not alleged that D. is within his murrcr. But
|hundred ; this is no breach of the condition, for the bailiff after verdict

:annot execute a precept out of the hundred where he is *^ ?'/-'f^V*"*

•i-ir /7\ would not

'^^'htr. (6) . avail. Weston

'. Mason, 3 Burr. 1725. And qu. Whether for the purpose of executing procets, the authority
'f these bailiffs does not extend over the whole county ?] (6) Unless it be directed to him
irticularly, and he be made special bailiff for that purpose. Salk. 176.

A sworn bailiff, commonly known to be an ofiicer, acting 8 E. 4. 14. a.

vithin his own precinct, need not shew his writ to the person he l\^'J^ %Co

rrests ; but when he has made his arrest, he is to inform him gg^ Stile, 405.

'f the substance of his writ, at whose suit the action is, and out Cro. Jac. 485,

•f what court the process issues; but a special bailiff is obliged "^^s. ||8Tcrm
o shew his warrant ; ||and qiiere, whether an ordinary bailiff must ^^^'"
liot, if required? II

'' A sheriff, who has a writ directed to him, mav authorize 8E.4. 14. a.

Kk 2 * others Dalt-<^-"7.

500 BAILIFF.

others to execute it; but the person to whom he directs it must pei -
son dlly execute it; yet it seems that one may lawfully assist him
Mod. 21 1. }\HoU C. J. formerly doubted whether an arrest by the bailiff s

follower were good though in the bailiff's presence ; but it is de-
termined, that it is not necessary that the officer having thle
authority should be the person making the arrest, nor even in
Cowp. 65. the presence of the person arrested, nor actually in sight, nor is
•See 2NewR. any exact distance prescribed; it is sufficient if he be near, and
211- acting in the arrest, and not on a different errand.

6 Mod. 210. It is a contempt of the court to hinder a bailiff arresting, but

1 Salk. 79. no rescue, unless an arrest is made ; and bare words will not
2NewR.2i2. ^^^ke an arrest.II
Vent. 306. A bailiff caught one by the hand (whom he had a warrant to
6 Mod. 173. arrest) as he held it out of a window ; and the court said that it
S. F. In wlmt ^g^g g^^^j^ ^ takinjT of him that the bailiff might iustify the break-
cases a bailin . r i i i • n J J
may justify ^"g open ot the house to carry him away.

Lreaicing open a house. Vide Cro. Jac. 280. Palm. 53. Fost. Cr. L. 136.320. 6 Mod. 105.'
and the authorities there cited ; and tit. Sheriff.

Lloyd V.San- ||And accordingly, where the officer touched the defendant

^ ,^""®' through a broken window, and told him to surrender, and then

further broke the window, and entered, he was held justified.
Leev.Gansell, Where the street door is open, the bailiff may legally break
^f^P* ^- '^'•'" open the inner door to get at the defendant, who is a lodger ;
ton^3^Bos"& ^"^^ ^^^ "™^y break open such inner door without previous de-
Puli.223. mand of admittance, though otherwise as to an outer door; but

Johnson v. he cannot break the inner doors of the house of a stranger, on

Leigh,6 Taunt, suspicion that the defendant is there.

248. ; and see

Hutcheson v. Birch, 4 Taunt. 619. Cooke v. Birt, 5 Taunt. 765.; and see 2Bam. & A. 592.

Hall V. Roche, The bailiff to whom a warrant is intended to be directed can-

8 Term R. 187. j^^^. arrest the party before he has it.

Boyd v. Du- ^ warrant to four jointly, and not severally, clearly will not

rand, 2 Taunt, authorize an arrest by one. ||

161. But fl/ifer if the warrant be joint and several. Palm. 52. Cro. Eliz. 913.

2 Jones, 197. One who is arrested by a sheriff's bailiff is in the sherifPs

Lev. 214. custody, and if rescued, the sheriff may allege that he was rescued

2 Lev. 28. But ^ fl'. , , ' Jo

where the she- <>"* ^f his custody.

riif returned virtute hrevis mihi direct, feci warrant. A. and B. balUvis meiSy qui virtute inde ccpe-
runt the defendant, et in cmiodia men habuerimt quousque such and such recusserunt hiii
ex custodiu ballivorum meorum, it was held ill ; for when the bailiffs have arrested the party
he is in fact and in truth in their custody; but in law he is in the custody of the sheriff, anc
an answer either way is good ; but to say that he was in the custody of the sherifli and yel
rescued out of the custod^^of the bailiffs, is repugnant. 2 Salk. 586. pi. 2.

Salk. 79. pi. 2. A bailiff having a warrant against A. went to him in his yard

S "rk^^6^M d ^^^ being at some distance told him he had a warrant, and saic

175.S.C. ||See' ^^^ arrested him; A. having a fork in his hand, keeps off th<

2 New R. 211. bailiff from touching him, and retreats into his house; and or

^C?im^. R. motion for an attachment for a contempt, the court held that bar*

&^C 52^' ll" words will not make an arrest; but if the bailiff had toucUec

him, that had been an arrest, and the retreat a rescous, and thi

bailiff might have pursued and broke open the house, or migh

have an attachment or rescous against him : but as this case is

the bailiff has no remedy but an action for the assault ; for th

hoklinj

{K) Of SJieriffs' Bailiffs. (Arrest — Sunday, &c.) 501

liolding up of the fork at him, when he was within reach, is good

evidence of that.

By the 29 Car. 2. c. 7. it is enacted, " That no person or per- 29 C. 2. c. 7.

*' sons upon the Lord's day shall serve or execute, or cause to ^" arrest on

" be served or executed, any writ, process, warrant, order, judg- ^^ Uve'n^v

" ment, or decree, (except in cases of treason, felony, or breach may have an

*' of the peace) but that the service of every such writ, process, action for false

" warrant, order, judgment, or decree, shall be void to all in- imprisonment.

" tents and purposes whatsoever; and the person or persons so ca"notb^emade

" serving or executing the same shall be as liable to the suit of good by any

.** the party grieved, and to answer damages to him for doing subsequent

" thereof, as if he or they had done the same without any writ, waverofthede-
cc i.1'1 x^j .11 fendant. sEast,

" process, warrant, order, judgment, or decree at all. J55 g g^gj '

547. II Salk. 78. pi. 1. A. was taken on a Sunday without any warrant, and locked up all that
day, and then on Monday morning a writ was gotten against him ; the court held, that he
might have an attachment, or an action of false imprisonment against those who took him on
the Sunday; but they refused to discharge him. G Mod. 96. [But where the writ was return-
able on a Sunday, and the officer arrested the defendant on the Monday morning, the court
discharged him out of custody, notwithstanding the writ was renewed within two hours after
liie arrest. Loveridge v. Plaistow, 2 H. Black. R. 29.] ||And where, by contrivance of
plaintiff's attorney, a party was aiTested on Sunday on criminal process, for the purpose of
efFecting his arrest on civil process, and he was detained till Monday, and then arrested on
civil process, the court discharged liim. Wells v. Gurney, 8 Barn. & C. 769,1| Where an
attachment was granted for arresting one on ChristmaS'day. Hetley, 19. But bail may take
their principal on Sunday, and confine him till Monday, and then surrender him. 6 Mod. 231.
(But see Brookes v. Warren, 2 Black. R. 1 273. contr. in the case of bail to the sheriff. Vide
Stat. 5 Ann. c. 9. § 3. by which one may be taken on an escape warrant on a Sunday. And
he may be taken on that day by the officer upon fresh pursuit; 2Ld. Raym. 1028. 2 Salk. 6^26.
6 Mod. 95. S. C] IJBut not at the suit of another [)arty, though he had a detainer against
him when he was discharged. 5 Term R. 25. Tidd's Prac. 216.|| That a bailiff may arrest in
the night, vide 9 Co. 65. b. Cro. Jac. 486. Where he may justify entering the house of a
stranger to make an arrest, rirfc Lutw. 14.32. ||4 Taunt. 619. 5 Taunt. 765. 6 Taunt. 248.|j
If a sheriff make out a precept to his bailiff to arrest one before any writ directed to him,
and the bailiff arrest the party accordingly, and afterwards a writ issue to the sheriff^ the
|)arty arrested may have an action of/a/ie im/)moH»ie?j/. Sand. 298. 2 Keb. 17.5. 838.

A special verdict found that a ^r/yaaas hove teste ^ Junc^hviX. Sid. 271. Lev.

was really sued forth 1 1 June, and executed 1 2 June ; and that g^^' § c ^^°

the party against whom it went became a bankrupt 6 June, and ^j^^ j Burr.

a commission was taken out 11 June, and trover and convcr- 20. 2 Burr.

sion was brought against the bailiff who executed the writ; and 8 14. ||Butthat

the court held, that though the property was so bound that the ''"''"■' ^^°"S"

111 i°/n*^.''i . c \ not tresi)ass,

execution should not have effect against the assignment ot the Ugs against a

commissioners, yet it was hard to punish the officer in trovei'y shcriilor ofB-
and make him a trespasser for doing what he was obliged to do, cer for seizing
and from which he could not plead to excuse himself, and there- 5',„nJrupt*cy °
fore gave judgment for the defendant. ' and selling*

whether before the commission or after, see Cooper v. Chitty, Burr. 20. Black. Rep. G5.
Smith V. Milles, 1 Term R. 475. Potter v. Starkie, 4 .Mnule & S. 260. ; but it seems the mere
seizure without a sale, or at least a removal, would not be a conversion. Wyott v. Blades,
3Camp. R. 396.||

The statute 23 H. 6. c. 10. €nacts, "That for an arrester 23H. 6. c.io.

" attachment the sheriff shall have 20rf., and the bailiff who Vide 5 Mod.

" makes the arrest 4rf., and that the sheriff or bailiff who doth Jf^^;,,^" *'='"'"

" contrary shall pay treble damages to the party grieved, and ^^^^\°^i „ bailiff

" forfeit the sum of 40/. ; one moiety to the king, and the other on this statute,

" to the party that will sue ; ancl that the justices of assize for taking

K k 3 " in

502 BAILIFF.

Ss.4d. for an " in their sessions, justices of the one bench and of the other
arrest ; Hand u ^j^ j justices of peace in their county, may determine the saic
see Dew v. ^^ rr » ' j^ j t

Parsons. oiFences."

2 Barn. & A. 562.]|

1 H. 5. c. 4. By the 1 H. 5. c. 4. itjis enacted, " That they which be bailiff^

" of sheriffs by one year shall be in no such office for three
" years next following, except bailiffs of sheriffs which be in-
" heritable in their sheriff-wicks; and that no under-sheriff,
" sheriff's clerk, receiver, nor sheriff's bailiff, be attorney in th^
" king's courts during the time that he is in office with any such
" sheriff."
Hob. 62, 263, Bailiffs, being officers who are to execute the king's writs, are
^f^h^^ ^' ^' n^ost commonly punished in those courts out of which such writs
Nov 101 issue, by attachment ; but it is impossible to set down all the mis-

Moor, 770. pi. demeanors and oppressive practices for which they are pun-
1064. 2 Roll, ishable in the discretion of the court : however, attachments have
Abr. 278. Bar- [jggjj granted against them where they have used needless force,
259 296 violence, and terror in making an arrest ; or where they have

2 Barnard. broken open doors where by law they could not, and there was
K. B. 213. no plausible excuse fordoing it; where they have treated the
persons arrested basely and inhumanly, or kept them in custody
till they consented to pay money for their deliverance ; or where
(a) 2 Burr. R. they have extorted [a) money for taking bail ; or made an arrest
926. Vide without authority, by force of a blank warrant filled up with the
2G^.c.22.and name of a special bailiff, by the party himself, without the privity
infni tit ' °' subsequent agreement of the sheriff; or if a bailiff levy a debt
Gaolers, and by virtue of an execution, and keep the money in his hands, and
tit. Sheriff. embezzle it; but even in these cases there may be such circum-
' stances or matters of alleviation as will induce the court to excuse,

if not wholly discharge them.

(B) Of Bailiffs of Liberties or Franchises.

These liberties A BAILIFF of a liberty is one who hath the same jurisdiction

and franchises -^^ ^ith the sheriff's bailiff, granted to him by the lord of a

began by the ti * r i,-

lords pur- liberty or franchise.

chasing the bailiwicks of the hundreds, sometimes for years, for life, or in fee, at a certain rate
in fee farm ; and for this the lords had the court-leet, the assizes of bread and beer, and the
amends, viz. the fines for the breach of any of the articles examinable in the leet ; and they
likewise had the return of writs.

These franchises proving very inconvenient, because the

sheriff could not enter into them to execute the king's writs, but

was to direct them to the bailiff of the liberty, who had the

execution of all writs, the statute Westm. 2. cap. 29. enacts,

that if such bailiffs give no answer to the sheriff, the court

should grant special warrant with a non omittas, which authorizes

the sheriff to enter the franchise ; and it being usual to take out

the capias and non omittas together, we have but little material

in our books relating to this matter.

Dalt.Sher. But there are some cases in which the sheriff may enter with-

fiq4 R^ Offi °"^ ^"y clause of non omittas ; as in case of a quo minus. Sj

34. Bro.Ret. where the sheriff is by Westm. 1. cap. 17. to make deliverance

26.' " " \iy

(B) Of Bailiffs of Libei^ties or Franchises. 503

by replevin ; so where he is judge, as in a writ o^ redissetshi ; so
in waste; so in executing a warrant for breach of the peace.

If the sheriff executes the writ of a common person without a 2H.4. iPlow.
no?i omittaSf the execution is good ; but the sheriff is liable to an v^fj^p^'
action by the lord for entering into his bailiwick. ....

II And if the sheriff in such case suffer the defendant to escape Piggott v.
within the liberty, the sheriff is liable to an action for the escape, Wilkes,3Bam.
since the arrest is not wrongful as against the defendant.

However, it has been held by Wood B., that the killing a Rex v. Mead,
bailiff making such an arrest does not amount to murder, since 2Stark.R.20.
the judge said the bailiff was a trespasser.

It has been decided after full argument, that an action on the Carrett v.
case cannot be maintained by the bailiff of a franchise for issuing Smallpage,
a writ of non omittas capias in the first instance, without a 9 l^'^st K. SoO.
previous capias, and return by the sheriff; since the long esta-
blished usage of the court has legalized the practice.

A writ oijieri facias, directed in the first instance to the bailiff Grant v. '
of the Isle of Ely, out of the King's Bench, is erroneous and void, fgf^^an j g^e'
and the baihff seizing goods under it is a trespasser. || 14 t;ast, 289.

iBro.&13.i2.
The bailiff of a franchise cannot enter into the guildable ; and
if he does it is erroneous, because he has no authority out of
the franchise more than the sheriff has in another county.

If there be two liberties within a county, viz. St. Edmund de Bro. Offic. 35.
Bury and St. Ethelbed de Ely in com. Sujfolk, and a capias is ^^^^ ^^•
directed to the sheriff to take the body of B. and the sheriff re- jj^g^ jg^ '
turns that he has made his mandate to the bailiff of Ethelbed, Thes.Brev.
who has made no answer, the sheriff, on a non omittas, shall I66.
enter into the liberty of Bury, though the bailiff of that liberty
has made no default.

If the bailiff of a franchise had made an insufficient return, sH. 7.ii.
which the sheriff returned to the court, they formerly held the 5 H, 7. 27.
sheriff was answerable, and not the bailiff; for an insufficient gTermH^n
return is no return, and the bailiff making no return, the sheriff SeetoosH.c.
ought to have said nullum dedit mihi responsum; but this is altered c. 9. $ 11.
by the 27 H. 8. cap. 24., which says that the amercement for in-
sufficient returns made by bailiflPs of franchises shall be set on
the bailifTs head, and not on the sherifTs.

[If the bailiff of a liberty, who hath the return and execution Boothmnn v.
of writs, remove a prisoner taken in execution to the county ^»^} of Surry,
gaol, and there deliver him into the custody of the sheriff, he is ^ *^'^'" '^'
liable to an action for an escape.]

If the bailiff of a liberty dies after he has returned cepi, a dis- Bro.Ret.Rrcv.
tri?igas issues against his successor, because he takes it up under ^^- 14E.4. 1.
the return of his predecessor.

II Where it appeared that King Charles U. by charter, re- Rex v. Jaram,
citing former grants of the franchise by Philip and Mary, and by ^g*?,'"," j^g^l
Charles I., granted the execution of all writs to Viscount Dunbar, ^ '^y g^ q'
his heirs and assigns, in the liberty of Holderness .- and it ap-
peared that the officer had, since 1787, been in the habit of sum-
moning jurors within the liberty to attend the quarter sessions ;
it was held that this evidence raised a presumption tliat there was

K k 4. a fran-

504 BAILIFF.

a franchise existing at the passing of the statute 27 H. 8. c. 24.,
there being no evidence to the contrary, and that it was the
bailiff's duty, on receiving the sheriff's mandate, to summon a
sessions jury. II

Roll. Abr. 539. "DAILIFF of a manor may himself, or may command another
to take cattle damage-feasant upon the land ; for he hath the
care of all things within the manor,
s Co. 76. Pilk- But if a distress be taken for damage-peasant, amends cannot
ington and be tendered to the bailiff; for he cannot deliver a distress when
Hastings. [If jj. j^ q^^^ taken, no more than he can change the avowry of his
tn6 distress dg \ o •'

impounded, master (a), or demand a rent upon a condition of re-entry.

the tender is too late either to the bailiff or principal, for it is then in aistodid legis. But
whether a tender to the bailiff before impounding be good, was not the point in Pilkington's
case ; for there the tender was after the impounding, and to a common servant, the master
himself being present. Cro. Eliz. 813.] (a) Dy. 22S. Vide 2 Stra. 1 128.

Vide Cro. Jac. A bailiff of a manor, though he has no interest in the land, has

Hob 1 54 "* ^^ ^^ authority to receive rents, take fealty, pay quit-rents, repair

houses and fences, and in other things act for his master's benefit ;

but he cannot do any thing to his prejudice, nor can he tile a

house that was before thatched, nor impale a place before

mounded with a hedge.
Cro. Jac. 178. A bailiff may be steward of the same manor; for those are

offices which are compatible.
•W. A bailiff hath no permanent estate, but is removable at the

lord's pleasure.
Roll Abr 539 ^ bailiff of a manor may lease the piscary for years, but he
Diversity ' cannot by any usage make a lease of his master's land,
■where he may make a lease at will, though not a lease for years. Lit. Rep. 71. ; for this vide
Roll. Rep. 258. Cro. Jac. 377. 2 Leon. 46.

Roll. Abr. 685. If a man takes cattle, without any command, for services due

But for this to the lord, if the lord after agree to the taking, he shall be

K^w m '^° adjudged his bailiff, although he was not his bailiff in any place

Fitz. Bailiff, 7. before.

Bro. Distress, 83. Comp, Incumb. 481.

Roll. Abr. 339. A bailiff may give licence to another to go over the land; for

But qiuere. If (.j^jg jg ^ trespass to the possession only, and the bailiff hath the

ttiicre must not •

be a consider- disposal of the profits of the possession.

ation given for such licence? Vide I Roll. R. 258. Cro. Jac. 337.

Palm. 402. In debt for rent, upon a lease for years, the defendant pleaded

that the plaintiff made J. S. bailiff of his manor, of which the
lands in lease were part, and gave him power to receive the
rents of the lessees, S^c, and also power to make leases for
years ; and that an agreement between the said bailiff and de-
fendant was made, that he should pay 100/., and also surrender
his lease to the use of the lord, and then should be discharged
of the rent, which he hath done ; and whether this agi'eement
would bind the lord was doubted, and a peremptory day given
to the defendant to maintain his plea, after which the reporter
nil plus inde audivit.

A. leases

BAILMENT. 505

A. leases to B. for ninety-nine years, if 5., C, or Z). shall so Lit. R. 35. 70,
long live, reserving a heriot of 5/. upon the death of every of 7i- Hetl. 12.
them ; B. dies, and the bailiff of v4. makes conusance as bailiflf .^,^' ^'-S-C.
generally for a heriot, but does not shew that A. had made his * ""^P*"^ •
election ; and whether this was not good and incident to the
place of bailiff, or at least whether this should not be intended
for the benefit and advantage of the master till the contrary was
shewn, dubitatur ; and after the parties agreed.

No bailiff can distrain for a fine or amercement without a 3 Mod. 1 38.
special warrant for so doing, which must be set forth by him in Slo' m^^^*'
an avowry or justification of such a distress, {a) 57^ 'gaik. 107.

pi. 2, 108. Skin. 587. pi. 1. 2 Keb. 745. 2 Hawk. P. C. 96. (a) The case in Salkeld says,
ne should have set out some estreat from the court, or warrant from the steward.

BAILMENT.

rT) AILMENT, properly so called, is a delivery of goods in LawofBail-

L trust, on a contract, express or implied, that the trust ment, 117.

shall be duly executed, and the goods redelivered as soon as ^^) ^'^'^'}^

the time or use for which they were bailed shall have elapsed or ^J^^t'^r

be performed. Improper bailment is, where the goods ave Uquel on donne

legally in the hands of the possessor, upon such trust hyjinding, une terre d

or in consequence of some distinct contract. Bailment is derived /<^'"™*» «" •"»*

from the French verb, haiUcTy to deliver; which word, as well as /o^a^^ . and

the others of this origin, are applied in that language (a) to one bai/leur is the

only of those species into which this contract is divisible, viz. person qui

letting to hire.] J^''^ hferme.

"=» ■' Diet, de

(A) Of simple Bailment, ||or Deposit to keep.H

11(B) Of Bailment by way of Pledge : And herein of
Pawnbrokers.il

(D) Where the Thing bailed is destroyed or dete-
riorated, to whom is the Loss, and to whom is the
Remedy : ||And of the several Degrees of Care re-
quired from various Bailees. ||

TAcad^m.

(A) Of simple Bailment, !|or Deposit to keep.ll

T F a man delivers goods to another to be kept, or, which is all [(h) This no-
one, to be safely kept (Z>), the bailee undertakes to keep them tion, that to

only from all damage that arises from his own negliffence : and **'**/' ""* , °
•' o «h keep ta/c/t/ are

506 BAILMENT. j

, . the undertaking being only to keep them, he ought not to use
same thinf was them as though he had an interest in them.

denied by the whole court in the case of Coggs v. Barnard, 2 Ld. Raym. 911.] |jSee Jones or
Bailment, 42.|| It was formerly held, that where goods were bailed generally, if those goods,
with others of the bailee's, were stolen, though without his default, the bailee should b^
responsible for them, there being a warranty in law annexed to all such bailments. 4 Co. 85.
Southcote's case. But for this vide Co. Lit. 89. a. Cro. Eliz. 815. Kelw. 77. Sav. 74. Sid. 36.
Roll. Abr. 3. pi. 2. Bro. tit. Bailment, 7., title Detinue, 35. jjBut that a depositary of goods
without reward is only liable in case of gross neglect, such bailment being only beneficial to
the bailor, see post, Jones on Bail, 117.1|

Co. Lit. 89. a. So, a fortiori^ if a man delivers goods to another to keep as a
4 Co. 83 b. man would keep his own ; and this is called a special bailment, in
11(a) With re- which the bailee doth undertake for no more than for his diligence
Breton 9^9' ^" ^^ keeping of them, and has no manner of use of the thing
lays it down to him committed, but the naked possession only, [a)
that if the pawnee (and it would be the same as to a depositary) is at charge in keeping the thing
bailed, as a horse, he may use it for his reasonable charge. Sir William Jones thinks, that
if the thing will be impaired by use, the depositary may not use it: if it cannot be hurt, as
chains of gold, jewels, &c. it may be used, but at peril of the depositary in case of accident ;
and if it be a horse, setting dog, or other animal requiring exercise, there would be a
presumed authority from the bailor for moderate use. See Law of Bailment, 81. The Roman
and French law permit the pawnee or depositary to milk cows delivered in bail, but require
them to account for the milk and calves, deducting reasonable charges of nourishment. Poth.
Depot, n. 47. Nantissement, n. 55.||

Co.Lit.89.a.b. HA. leave a chest locked with B. to be kept, and take away

^(tA^^^'k ^^^ ^^y^ without acquainting B. with the particulars, the goods

ledge or ignor- ^^ the chest are in the possession of A.; for since A. keeps the

ance of the key, the goods are locked out of the possession of B. ; and B. (b)

particulars ||not|| being acquainted with the particulars, cannot be supposed to

I^"* *]!°*^ have them under his custod\'; so that neither the possession nor
iuJect tne case r»i 1 • -rt r 1 11 • rii

at all under "^e oi the goods are in B. ; tor though the possession 01 the box

these circum- is in J5., yet is he shut out from the possession of the goods in

stances.] ||This the box ; for that cannot be said to be in his possession which he

opinion oes cannot take hold of and remove, or order, during: the continu-
not sGcm cor* ' o

rect, though it ance of such possession.

agrees with Lord HoWs dictum in 2 Ld. Raym. 914. Sir William Jones, on the contrary, ob-
serves, "No man can proportion his care to the nature of the things without knowing them ;
and the difference may be very material as to the defence." Jones on Bailment, 58. And if a
locked box contain articles of extraordinary value, it seems clear that the bailee is not bound
to greater care than if the box contained articles of ordinary value, by reason of his ignorance
of the contents. See Batson v. Donovan, 4 Barn. & A. 42. Sleat v. Faj^g, 5 Barn. & A. 348.
Bodenham v. Bennett, 4 Price R. 31., and Domat. Civ. L.lib. 1. tit. 7. § 1. says, that the bailee
of a locked casket is only obliged to restore the casket as it was delivered, without being
responsible for the contents. And in 1 Stark. Ca. 237., Lord EUenborough expressly held, that
the care required from the bailee became greater on his opening the box bailed, and ascertaining
that it contained coin.|l

Hartop v. [And if B. open the chest, and take the goods to a broker's,

Hoare, 3 Atk. and borrow money upon them, and deposit them with the broker
44. 2 Stra. ag a security for the money so borrowed, A. may maintain trover
1 Wils 8 S C ^^^ them (c) against the broker, without tendering him the
(c) The like money for which they were pledged by B.~\

law in the case of a remainder-man, upon the death of a mere tenant for life of goods pawned.
Hoare v. Parker, 2 Term R. 376.] jjie Vin. Abr. tit. Pawn, 264. And so, also, a factor could
not pledge the goods of his principal, so as to entitle the pawnee to detain them against the
owner for the advance. Paterson v. Tash, 2 Stra. 1 178. Daubigny v. Duval, 5 Term R. 604. ;
but see the alterations in the law by stat. 6 G. 4. c. 94. and post.^

(B) Bailmeni by way of Pledge ; and herein of Pawnbrokers. 5(r7

If the goods of A. are bailed by B. to C, C. must deliver them Ro'l. Abr. 607.
to B., for C. cannot pretend to remove or alter that possession 1''^'' ""^
committed to him, in order to restore it to the right owner ; for therTciIi**
the right of restitution must be demanded of him that did the C.J. says, if
injury, of which C. has no pretence to judge; and therefore it the property is
would be downright treachery in him to deliver them to any other j" others, the
than him from whom he had it. it^up^in"de-*^'

fence ; and Heath J. says, it is peculiar to ejectment that he who is intrusted with possession
of land must deliver it back to the lessor, but it applies to no other action. But see Dixon v.
Hammoad, 2 Barn. & Aid, 5 JO., that an agent cannot dispute his principal's title.||

But if ^. bails goods to B. to which C. has a right, and B. Roll. Abr. 607.
dies, his executors are chargeable only to C. that has right ; for ^l^^ *' ^^
the executors came to the possession by the law, and therefore Conversion.
must deliver it to those persons in whom the law has established
the property ; and the taking up of an executorship is an engage-
ment to answer all debts of the deceased, and all undertakings
that create a debt, so far as there are assets ; but doth not embark
the executor in the personal trusts of the deceased, any more
than he is obliged to answer for his several injuries ; and no
man can tell how they might have been discharged or answered
by the testator.

II If a thing be deposited by two, or by one with the authority May v. Har-
of the other, and received by the bailee to keep on joint account vey, 15 East,
of the two, one of them cannot demand the thing unless under ^^^'
an authority of the other, so as to maintain trover on the bailee's
refusal to deliver it.

(B) Of Bailment by way of Pledge : And herein of
Pawnbrokers. 11

PLEDGING is where goods and chattels are delivered in se- f °'^^R*jf *If?*

curity for money lent, and by such pledging the pawnbroker g^g' g^^ '
hath more than the naked possession in the nature of a bailment, Owen, 124.
for he hath the property and interest in the thing itself (a) ; and 2Salk.522.
by the better opinions, shall have a reasonable use of i^ so that P • ^* [(") ^"t
it be without damage to the thing thus pledged. has a tempo-

rary quaVificd property in the things of which possession is delivered to him by the bailor, and
has, therefore, a possessory action, or an appeal in his own name against any stranger wlio may
damage or purloin them. 2lH. 7. 14. b. 15. a. See Tr. on the Law of Bailmeuts, 81,82.]
IJAnd he may maintain case as well as trespass on his possession. Rooth v. Wilson, 1 Barn. &
A. 59. Croft V. Alison, 4 Barn. & A. 590. A gratuitous permission to another to use a chattel
does not divest the owner of the possession, and therefore he may maintain trespass. Lotan v.
Cross, 2 Camp. R. 464. But if the bailee hire the chattel for a definite period, he has the pos-
session during that time, and the owner cannot during the hiring support trespass, but only
case. Hall v Pickard, 3 Camp. 187.||

II It is said, that where the pawnee is at any expense to main- Jones on Bail,
tain the thing given in pledge, as if it be a horse or cow, lie g'' ^fif^^^K^ r
may ride the horse moderately, and milk the cow regularly, by ^1,^. Soman °
way of compensation for the charge. || and French

law as to this point. Potli. Dqtot, n. 47.

If a man pledge goods to J?., and they are stolen (Jb), B. shall Co. Lit. 89. •.
not answer for them, because he hatli a property in them ; and ^Inst ics.
his custody is but a consequent of that property, and therefore he p^j,^^ ^j,^

doth

508 BAILMENT.

Owen 125. ^oth undertake to keep them as his own ; though a man that

Yelv. 178. undertakes to secure what is another's is bound to keep them at

Cro. Jac. 244. all adventures, since the right owner might possibly defend them

Bulst. 29, 30. ^jjjj jjjg j-£g . jjyj. ^i,gj.g a^ j^^an is only obliged to keep them as

[(b) That is, if ^is own, no unavoidable accident is to be imputed to him.
the bailee be robbed of them ; for if they are taken dandestuiely (the proper sense of the word
stolen)^ he shall be answerable. lOH. 6. 21. Bro. Abr. tit. Bailment, pi. 7.] ||And this is the
distinction of the Roman law, " Adversus latrones parum prodest custodia : adversus furem
prodesse potest, si quis advigilet." Dig. 1 7. 252, 253. See also Poth. Contrat de Louage,
n. 429., and Poth. Contrat de Prit a Usage, n. 53. And Sir William Jones shews, that both
Lord Coke's doctrine and the reason {supri) are incorrect, since a pawnee, according to Lord
Holt, Ld. Raym. 917., and to the general principle applicable to cases where the bailment
is rectprocally beneficial (as in a pledge), is bound tq use ordinary diligence for restoring
the goods ; and the suffering the goods to be stolen is a breach of this obligation, though
it is otherwise as to a robbery. Jones on Bail, 75. (3d edit.) And though the case, 29 Ass.
pi. 28., seems to have decided that a pledgee was not answerable where the goods were stolen.
Sir W. Jones shews that the word was there inaccurately used for robbery ; in which he is
confirmed by Broke's statement of the case. Bro. Abr. tit. Bailment, pi. 7. And Lord Coke's
reason, " because the pawnee has a property," would apply equally to all species of bailments,
as well as that of a pledge ; and the true reason is, that the law requires of a pledgee only ordi-
nary and not extraordinary care. And Lord Coke's conclusion, " therefore he doth undertake
to Keep them as his own," is not an accurate statement of the pawnee's undertaking, since he
is bound to take more care of them than of his own, unless he is a prudent manager of his
own concerns; the law requiring of him ordinary care. " Aliena negotia exacto o^cio gerun-
tur." See Jones on Bail, 82.; and see 1 Esp. Ca.3l5. 4 Dow. & Ry.656.||

Clarke v. || Where A. intrusted B. (a chronometer maker) with a chro-

Earnshaw, nometer to be repaired, and B. suffered his servant to sleep in
and see^i Esp. ^^ shop, in which the chronometer was deposited, and J5.'s ser-
Ca. 315. vant stole it, and it appeared that B. at the time when the theft

was committed had deposited his own watches in a more secure

place, B. was held liable to A. for its value. ||
Cro. Jac. 243. If a man pledge goods, and tender the money to the pawn-
Yelv. 179. broker, and he refuse, this determines the qualified property ;
Bro^aUment ^^^ therefore if after such tender the goods are stolen, 8^c. the
7.R0II.R.129! bailor shall have satisfaction made him in an action of trover ;
Co. Lit. 8 9. for a tender and refusal must in those cases amount to a pay-
Bull. Ni.Pri. ment, because otherwise no man could again come to his own,

72. 2Salk.441. • ^ ^i, 1 i ^

since pawns are over the value lent.
Cro. Jac. 243. -^"^ though the borrower tender the money and recover the
Yelv. 179. goods in an action of trover^ yet the pawnbroker may have an
Bulst. 29. 31. action of debt for his money ; because though the security ceases,
fi^f^ff yet the duty remains, inasmuch as the money lent is not paid
for 25/. and back to the party from whence it came, (a)

J?, delivers them over to C, and makes Z). his executor, and dies, A. shall tender the 25/. to
the executor, and not to C; for C. is no more than a bailee, and hath only the custody of
them ; but the property of them is in D. as representative of B., and therefore to him must
the tender be made. Otherwise it is in the case of a mortgage, where the tender may be to the
assignee, because the property of the land is in him. Cro. Jac. 244. Velv. 178, 179.
(fl) But where a tender has been made, he should demand the money before he brings his
action.

Yelv. 179. So if a man lend perishable goods as a pledge, and they de-

Co. Lit. 209. j.gy^ yg^ j.]^g person to whom they are pledged may have an action

of debt for his money, because the duty continues.
Bro. Attach, in These goods thus taken to pledge cannot be forfeited by the
Assize, 20. pawnbroker for his offence, nor can they be taken in execution,

nor

(B) Bailment by way of Pledge ; and herein of Pawnbrokers. 509

nor attached for his debt, for the absolute property is in an- [But qu. Whe-
other; and therefore they are not alienable, nor by consequence ther they are
forfeitable, because they cannot be forfeited without loss and "P^^'abletobe
danger to the absolute owner; and all qualified possessors take ren[?"3Bu
the thing under the restriction to preserve it for the right 1498.] ||The
owner. question is,

. , . , . . . whether they

are within the exemption in favour of commerce? In Gilman v. Elton, 3 Bro. & B. 75 ;»
was decided, that the principal's goods in the hands of the factor were not distrainable "on the
ground of this exemption ; and so also cloth delivered to a tailor. 4 Term R. 568.)|

If a man pledge goods, and after is attainted of felony, the 2 H. 7. 1.
king shall not have the goods without paying the sum for which ^"'st. 29.
they were pledged ; for the alteration of tlie general property
doth not alter the special property in the pawnbroker.

II Where a party's goods have been obtained from him by Parker v.
fraud, and pledged with a pawnbroker without notice, it has ,J^'"'<^'^'»
been held, that he cannot on conviction of the offender get the 175*^!^" i*
goods, and detain them against the pawnbroker; for this case is sTautit. 13^
distinguishable ^rom felony, where the owner's right of restitu- and />©*/.
tion is given by express statute, 21 H. 8. c. 11.

But by the 39 & 40 G. 3. c. 99. § 13. it is enacted, " That if 59 &40G.3.
" the owner of goods unlawfully pawned shall make out on oath ^' ^^* § ^^•
*' before a justice that he hath had his goods unlawfully obtained
" or taken from him, and that there is reason to suspect that
*' any person hath taken them to pawn without the privity of
" the owner, the justice may grant a warrant for searching the
" house, warehouse, 8fc. of such person ; and in case of refusal
** to open the house, S^c. the peace officer may break open such
" house and search for the goods, and if found, and the pro-
*' perty made out to the satisfaction of such justice, he may
" cause the goods to be restored to the owner."||

If a man pledge goods, and then be outlawed, he cannot re- Bulst. 29.
deem them, because then the absolute property of them is in the
king ; but if the outlawry be reversed, then the outlawed person
is reinstated in his property as if there had been no outlawry, and
therefore may redeem them.

If the money be not paid at the day, the property is absolute
at law, but still the right owner has his redemption in equity, as
in case of a mortgage.

One pawned jewels to A., who signed a writing that they 2Vcrn. 691.
were to be redeemed in twelve months, otherwise for the 110/. ?^p Abr. Ca.
lent, they were to be as bought and sold ; A. within a short time Demaindray
after delivers over the jewels, together with some plate of his and Mctcalf,
own, to B. as a pledge for 200/. ; afterwards A. borrowed 38/. Pr- Ch. 420.
and 50/. of B. on promissory notes, to be repaid on demand : B., ^- ^" ^g^/l'**'
by his answer in chancery, insisted it was agreed that the pledge j Xtk.'sag. '
should be a security as well for the money on the notes, as for 236. S. C.
the money first lent, but could make no proof of any sucli pro- cited by Lord
mise or agreement ; and tiiough a redemption was decreed, yet it ^ardwtcke.
was on payment of all that was due to B., as well upon the notes
as on the pawns; but the goods of A. which were pawned

were

510 BAILMENT. ,

were to be first applied as far as the value of them would'

extend.

5 H. 7. f. 1. In the old books they took the nature of a pledge to be, that

it ought to be delivered at the same time that the money was lent ;

and if the goods were not delivered at the same time, in security

of the money, they did not plead it as a pledge, but in the nature

of a licence, to excuse the trespass.

2 Leon. 50. But by later authorities it appears, that the pawnbroker hath

Yelv. 164. a special property, though it be not delivered at the time of the

money lent.
2 Leon. 30, 31. As if ^. be indebted to B.y and delivers goods to C. in satis-
Yelv. 164. faction for the debt of B.f the property is thereby altered, and
the right to the goods is vested in B. ; so it is where the goods
are delivered to C. in security of the money of B., there B. hath
a special property in them ; and in these cases A. cannot counter-
mand such delivery to C, or take the goods back again, because
the property of these very goods is vested in B.; for here there
is a consideration to alter the property, and that is the debt due
to B. ; so that it is not a bare naked donation which the party
may possibly revoke before the possession be vested in B. him-
self, for ex nudo pacto non oritur actio; there is no consideration
to found an action on a naked donation ; but here there is a con-
sideration to alter the property; so that upon the immediate
delivery of the goods the property is vested in B.
Dyer, 49. Before these resolutions that the property was altered by the

1 Stra. 1 64. delivery of the goods by A. to the use of 5., the only remedy for

such goods when countermanded was in equity, upon the con-
sideration ; for it was ever thought altogether inequitable that
such delivery of the goods upon a valuable consideration should
be countermanded at pleasure.

2 Co. 79. There is great difference between a pawn and a mortgage of
Bulst. 29. lands ; for if goods be pawned without mention of time for re-
MortTses demption, they may be redeemed after the death of the pawn-
1 Ves. 278*. broker ; but if lands are mortgaged without any mention of the

time for redemption, they cannot be redeemed after the death of
the feoffee in mortgage; for when the feoffment is made to the
mortgagee and his heirs, the limitation is absolute, and the con-
dition only goes in derogation of that absolute feoffment ; so that
as far as the condition doth not extend, the absolute words in the
feoffment must take place ; and from hence it is that a condition
must be taken strictly, and can never be extended, because since
the condition goes in defeasance of the estate absolutely limited,
it absolutely must come in to shut out all extended construction ;
and therefore in this case, where the feoffment is made on con-
dition that the feoffor pay so much money to the feoffee, the
money must be paid to the feoffee during his life ; for money is
not limited to be paid to his heirs, and therefore there the words
of the absolute feoffment take place ; but where goods are pawned,
the pawnbroker hath but a qualified property, the absolute
ownership is in the person that deposits them ; and this property
cannot be extended beyond the intent for which it was created ;

and

(B) Bailment by nioay of Fledge ; and herein of Pamnhrokers. 51 1

and that is only for securing the money lent; for should the [(a) In such
property be thus extended, it would be to the injury of him that ^^^' ^jj^""*"
has the absolute ownership. Now the intent of the parties in tute of limit-
not limiting a time of redemption was plainly in ease of the ations will not
pledger, and therefore the time of redemption must be during attach, i Ves.
his life \a) ; and he cannot be confined to the life of the pawn- V^' . j
broker, for that might fall more to the disadvantage of the per- become bank-
son pledging than if a time had been limited ; and there are no rupt, his as-
absolute words to induce such a rigorous construction, contrary s'gnee may
to the design of the parties ; but if the pledger doth not redeem g„ufjy 'for"the
during his own life, his executors cannot redeem, for then the redemption of
words and intent both agree to make an absolute property to the pledge ;
the pawnbroker. * for, being u

stranger to
what is due, he cannot otherwise ascertain the precise sum he is to tender. Ibid."] * Qu. In
these cases equity would not relieve, unless it was clearly proved, in case of death, the benefit
of redemption was to be lost ?

But if time be set for the redemption of a pledge, and before Bulst. 2% so
the time the pledger dies, his executors may redeem it, and it
shall be assets in their hands ; for where there is a time limited,
there by the express words the party hath till the time appointed ;
and the time appointed is indefinite, and not during the life of
the pledger ; and therefore if he dies his executors shall redeem ;
and therefore the death of either party cannot prejudice.

Some have holden, that upon a valuable consideration a pledge Ouist. sj.

is assignable over, and that on such assignment the tender of the Owen, 124.

money from the pledger must be to the assignee, because the But if a thing

pawnbroker hath a special property, and what he hath he may '* ^^^ I" ""^
^ ^ ir f f J' J possession, 1

transfer over. cannot grant it

as a pawn, though I have a right to it ; for a naked right is not transferable over. 2 Roll.

H. 439.

[A factor hath no authority to pledge the goods of his prin- Paterson v.

cipal ; and if he do (c), the latter may recover the value of them Tash, 2 Stra.

from the pawnee, on tendering to the factor what is due to him, l)"^^' i'^ly^^-
. , ^ ; , o ' bigny v. Uuval,

without any tender to the pawnee. 5 Term R.

604. ; but Lord Kenyon in this case thought that the principal was bound to make tender to
the pawnee to the extent of the money due from the principal to the factor, though not be-
yond that sum. ||But see cont. M'Combie v. Davies, 7 East R. 6. However now, b^ 6 G. 4.
c. 94. § 5., any person may accept a pledge of goods which a factor has of his principal, and
shall acquire all the right, title, and interest which the factor himself had, and no more ; and
consequently the principal, to maintain trover, would now be bound to tender to the pawnee
all that he owed the factor. And see tit. Merchant and Merchandize.^^

By Stat. 1 Jac. 1. c. 21. § 5. The pawn of any goods wrongs i Jac. i. c. 21.
fully purloined, taken, robbed, or stolen from any person, to any y ^'
broker in London, Westminster, Southwar/c, or within two miles
of Lo7ido7i, shall not alter the property thereof.]

If a pawnbroker refuse, upon tender of the money, to re- 2 Salk. 522.
deliver the goods pledged, he may be indicted; for, being fij'J^J"^'^
secretly pawned, it may be impossible to prove a delivery in j^^^ j^
trover for want of witnesses.

A pawnbroker was indicted for refusing to deliver a silk petti- Carth. 277.
coat which the wife of J. S. had given him in pawn for the re- King v. Gail-
payment of 25. Gd., after a tender of the money ; and it being JJ^'fortpr'^^d^/,

moved ^

512 BAILMENT.

lUBre and nioved to quash the indictment, the court {absejite Holt) refused,
says, that if because of the great abuse by pawnbrokers.

the defendant ad demurred to this indictment, it could not have been maintained by law,
being only a breach of contract, which is actionable but not indictable. Vide 2 Hawk. P. C.
301., and Stat. 29 G. 3. c. .57. for preventing the unlawful pawning of goods, and for the easy i
redemption of goods pawned. [This act does not extend to any loan above 10/., or to persons]
lending money upon pledge at 5l. per cent, without further profit.]

39 & 40 G. 3. II By the 39 & 40 G. 3. c. 99., intituled "An act for the better '
C.99. regulating the business of pawnbrokers," it is enacted, that if]

any goods or chattels shall be pledged for securing any money
lent thereon, not exceeding 10/. and the profit thereof, and if I
within one year the real owner of such goods shall tender unto
the person lending the money borrowed and profit, according
to the rates of that act, and the person lending shall, without
reasonable cause, neglect or refuse to deliver back the goods, S,x.
so pawned, then and in such case, on oath thereof made by the
pawner or other credible person, a justice is empowered to cause
the person taking such pawn to come before him ; and on pay-
ment by the pawner of the principal money and profit, and in
case of refusal to receive the Same on tender thereof before the
justice, such justice shall direct the goods to be delivered to the
pawner ; and if the person taking the pawn shall refuse to deliver
up or make satisfaction for the goods, then the justice is au-
thorized to commit the party to the house of correction or other
public prison, there to remain until he shall deliver up the
goods, or make such satisfaction as to the justice shall seem
reasonable.

By the seventeenth section of this act, all goods pawned shall
be deemed forfeited, and may be sold, after the expiration of
one year, exclusive of the day whereon they were pawned.
Walter v. It has been decided on this clause, that if the goods remain

Smith, n Barn, unsold in the pawnbroker's hands after the year, and a tender is
& A, 439. made by the owner while they are so, the pawnbroker cannot

afterwards sell them ; and if he does, the owner may maintain
trover against him.
Peet V. Bax- Where one employed to sell goods by commission pawned

r'^472 them, and the owners made a demand of the goods on the pawn-

broker, who refused them, it was held, that the owners might
maintain trover against the pawnbroker, although they did not
produce the duplicates at the time of the demand, pursuant to
the fifteenth section of the above statute ; for they claimed by
title paramount to the pawner of the goods. ||

Cro.Car.27i. TF -4. puts his beasts into BJs pasture, on agreement to pay B.
2 Roll. Abr. sixpence per week for the pasturage, B. cannot retain the

92. (a) The beasts of A. until he hath paid him the money, unless this were
law did not ^^ gj.gj. provided by their agreement; but the only remedy that
tek?the ca«Ie ^- ^'^s is upon the contract, {a)
into pasture ; consequently B. gave credit to the person of the owner.

Bui

But if a horse be committed to an hostler, he shall detain him p
till he is paid for his meat, (a) |g °j g ^j'g

5 E. 4. 2. b. 2 Roll. Abr. 85. {a) He was obliged by law to take in the horse if he had room.
iJAnd upon the same principle innkeepers have a lien on the goods of their guests for the en-
tertainment furnished ; and a tavern and coffee-house in London is an inn for this purpose.
Thompson v. Lacy, 3 Barn. & A. 283>.I|

So if cloth be committed to a tailor to make up into a garment, 2" E 4 49
he shall detain the cloth until he is satisfied for his labour. Cro. Car. 271.

8 Co. 147. For in behalf of trade and commerce, the law doth annex the condition that tlie
bailee shall retain in certain cases; for men that get their livelihood by commerce, and by
entertainment of others, cannot annex such disobliging conditions that they shall retain the
bailor's property in case of nonpayment, or make such disadvantageous and impudent supposi-
tions that they shall not be paid; and therefore the law annexes such a condition without any
express agreement of the parties. Besides, goods that are put into the places of public enter-
tainment and ti'ade, are, for the sake of public commerce, taken into the custody of the law
as well as of the party, and therefore cannot be there distrained. Now goods that are in the
custody of the law, cannot come out thence till the purposes are satisfied for which they were
there placed ; and the purpose for which these chattels are first committed to such public
places is, that they might be there conserved, and the party to whom they were committed
paid for his trouble and charge about them. Now since the act of the law doth no man
any injury, it cannot free any thing from such public custody till the party is satisfied to
whom they were thus committed. Vide tit. Inns and Innkeepers, and Trover.

A tailor hath cloth delivered to him to make up into a garment, Palm. 223,
which he doth accordingly ; he shall have an action for his work, 224.
without delivering the garment : and if the tailor refuse to deliver
the garment upon request, it ought to be shewn on the other
side in excuse of the action ; for the tailor's action is founded
upon the promise; and if he hath done the work, and is ready
to deliver the garment, he hath performed all that the law
requires on his part; and on that consideration is entitled to the
benefit of the defendant's promise.

If a man lends another his sheep, oxen, or his cart, the bor- Doct. & Stud,
rower hath a qualified property in them, according to the purposes ^•^- ,^ ^•
for which they were borrowed ; and by force of this loan they 91 °jo*nes"on
may be used reasonably for these purposes and for the time Bailm.69.||
iagreed on ; and if they perish in such occupation, it is at the
peril of the lender ; but if they perish in any other manner, the
borrower must answer for them.

\^ A. borrow a horse to ride to Dover, and he ride out of his Yelv. 172.
.vay, and the owner of the horse meet him, he cannot take the ^''9; "l"^,^'^'
|liorse from him, for A. has a special property in the horse till a 'i,aiiee m'ay**
he journey is determined; and being in lawful possession of the be guilty of
lorse, the owner cannot violently seize and take it away, for the larceny, see
ontinuance of all property is to be taken from the form of the | IJ"^k. P.O.
)riginal bargain, which in this case was limited till the appointed Leadi's Cases
ourney was finished. 527. 173.]

But if ^. borrows a horse to go to Dover, and goes to other ^^o^'- I^-^ss.
'laces, the owner may have an action on the case against him
or exceeding the purposes of the loan; for so far it is a secret
ind fallacious abuse of his property; but no general action of
respass, because it is not an open and violent invasion of it.

||The party borrowing a horse is bound to keep it, unless Hnndford v.
omething is said to the contrary. || & b'' co" ^'"'''

Vol. I. LI If *" *

514

BAILMENT.

Co. Lit. 57.
Cro. Eliz. 784.
Moo. 248.
Owen, 52.
Dyer, 121.
pi. 17.

5 E. 4. 2.

Doct. & Stud.
(D)2. C.38.
IINoy's Max.
91. Bract. 99.
a. b. Ld.
Raym. 916.1|

If a man lend another his sheep to stock his land, theborrowcn-
hath the bare use of them; but if he kill them the owner shall
have a general action of trespass, or an action of trover, at his
election; for though the use is in the borrower, yet the property
is in the lender, and the killing of the sheep is an open violation
of another's property, which is complained of in the generil
action of trespass.

If I sell you a horse for 20/., I shall retain him unless tl .
money be actually paid, or conditioned to be paid at a futu:e
day; for unless there be quid pro quo the property is n )t
altered.

As to the borrowing of things perishable, as corn, wiiu,
honey, or the like, a man must, from the nature of the thine-
have an absolute property in them, otherwise they could n
supply the uses for which they were lent, and therefore he '
obliged to return something of the same sort, the same i
quantity and quality with what is borrowed. ||And if th;
perish, it is at the peril of the borrower. U

4 Co. 83.
Southcote's
case. Doct. &
Stud. CD) 2.
c.38.

Post. (243).
Coggs and
Barnard.
2 Ld. Raym.
913. 2Stra.
1099. 12 Mod.
487.

(D) When the Thing bailed is destroyed or deteriorated,
to whom is the Loss, and to whom is the Remedy :
II And of the several Degrees of" Care required from
various Bailees. ||

TT is holden by some, that if^. commits goods to B. to be
kept, or, which is all one, to be safely kept, and they are
stolen, that B. must answer the value of them to A. Others have
made a distinction, that if B. had undertaken for a price to keep
them, that then he should have been bound to answer for theni
if they had been stolen, because there is a consideration to found
the promise; but where no reward is agreed on, there they say
there can be no consideration on which the promise is built, and
therefore a naked promise which affords no action : but the
reasons urged against this are, that where another loses by my:
undertaking, I am equally bound to make good the value of m^
promise, as if I myself was to receive gain by the bargain ; fof
since another man's property, and possibly the whole fruits ol
a long and painful industry, are lost and wasted by my under-
taking to secure it, -certainly I, from whom the damage arose,
ought to make him satisfaction ; for every man is presumed to j
guard his own, and not easily to part with that which canno'
be acquired without great difficulty ; and therefore it must !>
presumed that he would have safely kept his property, and noi J
have committed it to me, unless I had undertaken to secure it; f
and if I fail in that undertaking, I am bound to a restitution
for I am equally obliged to a restitution where another nuu
suffers an injury by my means, as where I myself commit ar
injury; and had the law any other course in these cases, it wert
a perfect inlet to all collusion; for agreements and contrivance:

migli

(D) Remedy Jor Loss or Damage of the Thing bailed, 515

might arise between the men of violence and such treacherous
undertakers, as are not easy to be discovered.

II Where a depository for hire Iiad lodged the goods deposited Finucane v.

in a place of security, where things of greater value were de- ^™^'» ^ E^p.

posited, he was held not answerable, though the goods were see«»z'/f p sos
stolen by his own servants, since positive negligence must be
proved, in order to charge him. |]

If a carrier, ferryman, or hostler, be robbed, he shall answer 4 Co. 84.

the value of the goods, for the carrier, Sfc. hath his hire (a), which £*';if'J' ^?'
implies an undertaking for the safe custody and delivery of I not the r?a-

them ; for no man would give another money for securing his son, for a

property, if the party that received it were not to undertake on factor and

his part to secure it. ^^^''^ ^^^ve

^ equally a hire;

the reason is the {public employment he exercises, and the poh'cy of preventing carriers con-
federating with thieves. 1 Ld. Rayra. 917. 1 Salk. 143. 12 Mod. 487.||

1{ A. delivers goods to B. to be delivered over to C, C. hath Roll* Abr.606.
the property, and C. hath the action against B, ; for B. under-
takes for the safe delivery to C, and hath no property or interest
but for that purpose.

But if the bailment were not on valuable consideration, the Bulst. 68.
delivery is countermandable ; and in that case if A., the bailor, '-•ompared with
I bring trover, he reduces the property again in himself, for the Yelv°"64?*
action amounts to a countermand of the gift ; but if the delivery
was on a valuable consideration, then A. cannot have trover, be-
cause the property is altered, and in trover the property must be
proved in the plaintiff.

If a man delivers goods to another, the bailee shall have a ge- is Co. 69.
neral action of trespass against a stranger, because he is answer- np ?' ^*
able over to the bailor ; for a man ought not to be charged with \viison
an injury to another, without being able to resort to tiie ori- i Barn. & A,
fjinal cause of that injury, and in amends there to do himself 59. Croft v.
right. Alison 4 Bam.

o . , & A. 590.||

If I deliver goods to B., and C. that hath right demands them p.N.B.iss.M.
of him, if ^. either before or pending the action deliver over Roll. Abr. 607.
the goods to me, this is a good bar to the action of C. brought
against B., for since B. hath undertaken to deliver the goods
back to me, he shall not be chargeable for the honest perform-
ance of that undertaking ; for B. that is trusted with my pos-
session shall not remove or alter my possession, and therefore
^hall not be put to answer for that to which the law obliges him.

But if I find goods and convert them, and another recover Roll. Abr. 607.
ihem from me, yet a stranger that has right shall have his action
against me, and therefore two persons claiming in trover shall
iiterplead with each other; for I have by my finding the pro-
• rty in me till another shews a better right ; now this property
ntinues until the real owner appears ; and if I by weak de-
ences do not support that property, that shall be no injury to
'he right of another; for the original injury begins from me, by
mdertaking to intermeddle with what is ajiother's, and which I
m sure is none of my own.

h 1 2 II Where

516

BAILMENT.

Robinson V. || Where an agent receiving money for his principal paid i:

j^m't^ ^■^^^" along with his own money, into his general account at his

and <iPP\Vrpn banker's; on the banker's failinjr, it was held that the agent wai

and see Wren
V. Kerton,
11 Ves. 377.
Massey v.
Banner,

'o'

5 Co. 14.
Cro.Eliz. 777
784. Owen,

Godb. 72
Doct.&Stud.
(D)2. c. 38.
The reason of
these several
cases is this,
that when any
man borrows
or hires any

responsible for the loss ; and it is the same though he acts gra-
tuitously; in order to protect himself he should pay it in to i,
separate account. ||

4 Madd. 413. 1 Jac. & \V. 241. These cases do not proceed on the ground that the defendant
is a neghgent bailee, but that by confusing the money with his own, he has made it his owfl,
and incurred a debt to the amount to his employer. i

Roll. Abr. 607. If a bailee deliver the goods to another, there he shall have aix
action of detinue against him, because he hath his possession,
and undertakes for the custody ; and the original bailor may
have his action against either of them, because in him is the
property which both are bound to answer to him.

If a man lend or let another his horse, and for want of safe
keeping the horse die, the owner is entitled to an action on the
52. Dyer, 121. case; so if a man lend another sheep to teth his land, and byj
the negligence of the borrower they are drowned, an action oii
the case lies; so if a man lend another a horse, and he put him
into a stable that is ruinous, and the stable tumble in upon t
horse and kill him, an action on the case lies ; but if the sta
had been strong and substantial, and had fallen by violent te
pest, then is the borrower excused ; so if a man lend another
horse, and he die of divers diseases, the borrower is excused,
thing, and only uses it according to the purposes of the loan, that contract bears him out fri
all accidents that are consequent upon such usage ; for there is no reason why the borro\
should not have the use of it according as the owner had licensed and empowered him ; an
any unavoidable accident happen upon such a licence, the lender must impute it to the foB
of his own permission ; but if it happen through the negligence of the borrower, then it is '
he should answer for it. ||See Jones on Bailm. 65. (3d edit.)||

Dean v. Keate, ||When a hired horse is taken ill, if the hirer call in a farrit r
s Camp. 4. Y\e is not answerable for the medicines the farrier may administer :
but if he prescribes for him himself he assumes a new degree • '
responsibility, and if the medicine causes the horse's death, I
does not exercise that degree of care which may be expectt
from a prudent man to his own horse, and is consequent.^
answerable to the owner.

In an action for not properly taking care of a hired horse,
some evidence of negligence must be given ; it is not enough to
shew that he was let sound and returned with his knees brokei

After a hired horse is exhausted, and has refused its feed, ti
hirer is bound not to use it, and if he afterwards pursue his
journey with it, he is liable to the owner for its value. ||

If -4. take a gelduig to pasture, and the gelding be stolen, i
action lies against J., unless he had made a special asmmp.<it
to deliver him [a) ; for the undertaking of A. is to feed the geld-
ing in the fields and in the open air, and not to keep him safe)
as the hostler is obliged to do in his stable; and the law willn
stretch men's promises beyond their first undertaking.

Popham C. J. advanced generally, " That if a man, to whom horses are bailed for agistmt
" leave open the gates of his field, in consequence of which neglect they stray and are sto t
" the owner has an action against him."] IIAnd so, also, if the bailee put the horse at (JiJ"*

" iiito

Cooper V.
Barton, Id. 5.

Bray v.
Mayne, 1 Gow
Ca.1.

Moor, 543.
[See 1 Roll.
Abr.4. S.C.
(fl) But Rolle
mentions no
such reason ;
and according
to him.

(D) Remedy for Loss or Damage of the I'king bailed.

^17

into a field badly fenced, whereby the horse falls into the neighbour's field and is killed,
although the neighbour was bound to fence. Rooth v. Wilson, 1 Barn. & A. 59.\\

If a man find goods and abuse them, or if he find sheep and I^eon. 123.
kill them, this is a conversion ; but if a man find butter, and by ^"'* ^d^\
his negligent keeping it putrefy; or if a man find garments, and 21.
by negligent keeping they be moth-eaten, no action lies ; so it is
if a man find goods and lose them again ; and the reason of the
difference is this : where a man delivers goods to another, the
bailee by acceptance of the goods undertakes for the safe custody
of them, and it is to be presumed that the owner would not
have parted with them but under the confidence of that security ;
but where a man only finds the goods of another, the owner did
not part with them under the caution of any trust or engage-
ment, nor did the finder receive them into his possession under
any obligation ; and therefore the law only prohibits a man in
this case from making an unjust profit of what is another's ; but
the finder is not obliged to preserve those goods safer than the
owner himself did, for there is no reason for the law to lay such
a duty on the finder in behalf of the careless owner, and it
seems too rigorous to extend the charity of the finder beyond the
diligence of the proprietor ; it is therefore a good mean to punish
an injurious act, viz. the conversion of the goods to his own
use, but not to punish a negligence in him, when the owner is '

guilty of a much greater one.

A carrier is bound to the safe delivery of a box, though he Allen, 95.
doth not know what is in the box, unless he refuses to carry it Vide head of
without he be instructed in tlie particulars, for the party is not ^f^"^^'*'
obliged to tell him.

I shall, as applicable to this doctrine, insert the following
noted case, with the argument at large of the Lord Chief Justice
Holt.

In an assumpsit the case was this : The defendant did under-
take to remove a quantity of brandy from BrooJc's Market to ■^""? ^
Water Lane, and by reason of his neglect one of the casks broke : b.^Hioz.
and on not guilty, a verdict was found for the plaintiff; and in Coggs v. Bar-
arrest of judgment, two exceptions were taken : nard, 2 Ld.

1st, Because in the declaration he was not alleged to be a
common porter.

2dly, 13ecause it was not averred that he had a reward.
But the whole court resolved, that in tliis case the plaintiff
ought to have his judgment.

Holt, Chief Justice, his argument was to this purpose :
There be six several sorts of bailments, which lay a care and
obligation upon the party to whom the goods are bailed.

I. The first is a bare and naked bailment to another, to keep
for the use of the bailor, which is called deposit urn.
this division of bailments a little inaccurate ; that in truth the ^/th sort is no more than a
"branch of the third, and a seventh might with equal reason have been added, since the /i//Jt is
capable of another subdivision. He acknowledges, therefore, but^ce species. 1. DepotUum,
which is a naked bailment, without reward, of goods to be kept for the bailor. 2. Mandatum,
or commission ; when the mandatory undertakes, without recompense, to do some act about
the things bailed, or simply to carry them; and hence Sir Henry Finch divides bailment into

LI 3 two

7VJ«. Tenii.
Anno 2 Ann,
tee in

Raym. 909.
S.C. Salk.26.
S. C. Com. R.
135. S.C.

[Sir Wiiiium
Jones thinks

518 BAILMENT.

two sorts, to hcep, and to eviploy. Law. bk. 2. c. 18. 3. Commodatnm, or loan fur use ; wh
goods are bailed without pay, to be used for a certain time by the bailee. 4. Pignori Accei
turn ; when a thing is bailed by a debtor to his creditor in pledge, or as a security tor the debt.
5. Locatum, or hiring, which is always for a reward; and this bailment is either, 1. locatio reii,
by which the hirer gains the temporary use of the thing; or, 2. locatio operis faciendi, wheti
work and labour, or care and pains, are to be performed and bestowed on the thing delivered';
or, 5. locatio operis mercium vehendarum, when goods are bailed for the purpose of being caf'
Tied from place to place, either to a public carrier, or to a private person. Law of Baihii. 55,
36.] ||In this learned and elegant essay, Sir W. Jones has, by a close analysis of the cases,
shewn the confusion occasioned by Lord Coke's inaccurate doctrine as to the responsibility of
a mere depository for stealings without his default, (see Co. Lit. 89. a. b. Southcote's Ca. 4 Rep.
83. b.) and as to the non-responsibility of a pledgee in such case by reason as. Lord Coke says,
of his property ; (Ibid.,) he has confirmed, with slight exception, the luminous view of th(3
responsibility of the several bailees, by Lord Holt in Coggs v. Barnard, 1 Ld. Raym. 909., by
reference to the text of the civil law and its commentators, from which, through the metlium
of Bracton, Lord Holt derived his doctrine. He has pointed out the incongruity in Ld. HoW^
system, in requiring the same extreme care from a hirer as from a borrower, and haj
traced it to its source in a peculiar expression in the Digest, copied by Bracton ; and has thus,
besides illustrating the subject with much apposite learning, done all that reasoning, without
judicial authority, can do, to reduce the English law on the subject to a system harmonizinf,^
with the settled doctrine of Rome, with the laws of other countries, and with the rules of natural
equity and good sense. His conclusions may be summed up thus : that when the bailment \<
beneficial merely to the bailor (as in cases of gratuitous deposits to keep) the bailee is only
responsible for fraud, or that extreme negligence which in legal presumption is equivalent to it ;
that where the bailment is mutually beneficial (as in cases of pledge, of letting and hiring, of
performing works for pay), the bailee is responsible for ordinary neglect, or the want of thac
ordinary care which a prudent man takes of his own goods ; and that where the bailment is
beneficial solely to the bailee (as in loans for use without reward) the bailee is responsible even
for a slight neglect.jl

2. A delivery of goods to another which are in themselves
useful to keep, and these are to be restored again in specie, which
is called accommodatum.

3. A delivery of goods for hire, which is called locatio or con-
ductio.

4. A delivery by way of pledge, which is called vadium.

5. A delivery of goods to be carried for a reward.

6. Such a delivery as here in the case at bar, where goods are
delivered to do some act about them, as the carrying, and with-
out a reward, which is called mandatum by Bracton, lib. 3. 100. ;
in English^ an acting by commission.

And though I do not think all these immediately necessary to
the case in question, yet the explanation of them will make the
case clearer.
Mytton V. 1. Then as to the first, if a person out of kindness keeps the

Cock, 2 Stra. ^qq^^ of another, he shall not be answerable if they be stolen,
\\(a) Where a without there be a particular default in him : and 2dly, such a
gratuitous bailee is not chargeable for a common neglect, for it must be a
bailee turned gross neglect for which he shall be liable, {a) I must confess I
the horse g^^^g ^ great authority to encounter, which is Southcotfs case,

dark into 4 Rep. 83 b. However, my Lord Coke in his report goes

a pasture-field farther than the case itself, for he there makes a difference be-
where his own tween keeping generally, and safe keeping ; which in the case
*^^dk fe?Hnto ^^^^^ '^^ "^' mentioned, but in his note at the end of it; and 1
a neighbour's eannot think it to be justice to charge the bailee if the goods be
field by reason lost without any default of his ; for why should he answer for the

of defect of wrongs of other people, against whom he undertook not?
fences, and was otto

killed, he was considered responsible to the bailor. Rooth v. Wilson, 1 Barn. & A. 59. Sed

quart,

CD) Remedy for Los$ or Damage of the Thing bailed, 519

qwEre, Whether this was gross negligence? The point decided was, that the bailee might sue
the neighbour in case for his defect of fences and recover the value of the horse : and the
objection being taken that he had no property to maintain the action, it was held, that he
might maintain it on the ground of his liability over to the bailor. But yu. Whether, without
this reason, the action might not be supported on the ground of the bailee's »f)M<?»«on ? See
jper Abbott and Ilolroyd Js., 1 Barn. & A. 62. ; and see tit. Trespass (C), Vol. Vll., and 2 Saund.
R. 47. b. By special agreement the depositary may render himself liable for less than gross
negligence, Jones, 47. According to the Roman law, if the bailee volunteered himself to under-
take the charge, he became responsible for ordinary neglect, though not for casualties. Dig.
1. 16. tit. 5. 1. 35.; since he might prevent the owner employing a person of more vigilance;
and this seems the law o£ France. Code Civ. Art. 1928.||

There never was, before Southcotfs case, any solemn deter-
mination of this matter ; the first case of it was in 29 Ass. pi. 28.
8 Ed. 2. Fitz. Detinue, both quoted in SouthcoWs case ; but I
cannot agree to the reasons of those cases, for the neglect of the
party may be as great where goods are locked up in a chest, as
where not (a), and by that reason ought to be chargeable as
much in the one case as in the other ; and the 4 Ed. 4. is only a Ca) See Law of
debate of two counsel at the bar, for Dauby was not then C. J., 39 \\Anti '
and what he said was only for his client, and not of authority ; p. 506.|j
and 3 H. 7. is only a sudden opinion. Now Soul/icoii's case came
long after, viz. 43 Eliz. ; and there two judges in the absence of
the other two gave that opinion, which cause was improved by
my Lord Coke; but it has been the constant practice for as long
as I knew the court, that in all the trials at GuildJiall, where
npon the evidence no default appeared in the bailee, to direct
for the defendant ; nor did ever any one venture, upon the au-
thority of Soitthcotfs case, to find the matter specially : I take it
that this bailee is so far from being charged, that though the
goods be lost by a common neglect, he shall not be answerable; vn^s 3^ jf jj.
as if he negligently keep his own goods, and that his own and be proved
his friend's goods are both lost(6); now the lossof liis own is an that his house

argument of his sincerity, and therefore he shall not be charge- }'^'"S °" j^f®
^ . . ^ • • * he suvcu Ills

able; this is in Bracion, 99.; and though this is an ancient own goods

author, yet it is agreeable to reason, and is not in this point only and having

the law of England^ but of foreign countries, as may be seen in time, to save

Justinian's Inst, where I believe Bracton got his notion. Now those depo-
.» , , 1 • • 1 1 1 I sited he suf-

i\ there be an apparent gross neglect, it is looked upon to be a f^.rgJ ^hcm to

fraud ; but otherwise if it be not a gross neglect ; and I know no be burned, he

reason wh^ the bailee upon taking goods, if it were in writing, shall restore

shall not be charged against the wrong of a third person, as in J. ^ r°I!V-^°
•rx • y-i *? ° -i r>K ^ 1 • I the owner.
Hob. 34. Cro. Jac. 425. and SCro. 514. ; and yet without Poth. Con-
writing, as in Southcott's case, to be charged ; and the Doctor trat de Depot,
and Student, 128. 212., says, it is for the advantage of the "-29. Stiem.
bailor, and that an action does not lie unless they be lost through f 2 "c'^5'" wid
negligent keeping ; so that I do not find sufficient reason nor ^gi Gow,
authority to support the opinion of Seuthcoii's case. N. P. Ca. so.jj
2. A lending gratis to use for his advantage, there the bor- flAndthe civil
rower is strictly bound to keep it, for if he be guilty of the least JjJ-j, "j",?/f '
neglect he shall be answerable ; as if I lend a horse to go to « Connnoda-
the North of England, and he goes to the fVest, and the horse is turn autcu

LI 4 stolen

520 BAILMENT.

plerumque so- stolen, he shall in that case be chargeable ; for if he had gone as

contfnit etuT ^ ^Ji^ected, the horse, perhaps, would not have been stolen ; this

cui commoda- •*'°^'' of bailment is mentioned in Bracton 99.; but in this case, if

tur. Et ideo this horse had been in the stable of the bailee, and stolen thence

verior est Q. without his default, as perhaps the thieves might first have bound

tiaexi'stimemfs ^^^ bailee, and then have taken the horse, he shall not be answer-

et culpaniprfB- ^^^^ 5 ^^^^ ^^ ^^ left'the stable doors open, he shall for that neglect

standam et di- be answerable. Bracton says, he ought to take the utmost care,

li^entiam." jju^ j^ ^q place savs he shall be charged where no default was

D\e.\3.6. 5. 2. • I • '' °

Domat's Civ. ^^ ^^"^•

L. p.l. b.l. tit. 5. § 2. Grot. b. 2. c. 12. $ 13. And so is the French law, Code, Art. 1928.

Lethbridge || Where A. lent a picture to B., who wished to shew it

sSV^'k'c' *° ^' ' ^^^ ^'* ^''^^""^ ^"y previous communication with C,
544^ ' ■ sent it to his house, where it was accidentf-lly injured ; it was
held, that C. was not responsible for not k {jing the picture ; for
he could not be made a bailee without his consent. 1|
||(a)SirWm. 3. As to the third bailment, where goods are hired out for a

Jones, Law of reward, Bracto7i, 62. says, the hirer is to take all imaginable
she'ws tliat ^^^^ ^^^' ^^^ ^° restore it at the time; and he is bound to the
Bracton's doc- Utmost diligence, such as the most diligent master of a family
trine, here useth ; which care if he so useth, he shall not be bound. Now the
^ed by Ld. most diligent man is liable to be robbed ; and therefore I collect,
thesame"ex"^ ^^^^ ^^^^ ^^ ^^ careful as according to BractmUs definition, and
treme care be robbed, he shall not be liable.

from a hirer as from a borrower, is copied from Justinian, Inst. 3. 25. 5., where the words are
speaking of a hirer, " Talis ab eo desideratur custodia qualem diligentissimus paterfamilias suis
rebus adhibet ;" which doctrine was, as stated in the Proeme to the Institutes, taken from the
Commentaries of Gaius. And in the Digest 1. 19. tit. 2. 25. 7. Gaius, treating of the liability
of a person employed to transport a column for breakage, says, " Culpa autem abest si omnia
facta sint quae diUgentissivnis quisque observaturus fuisset." Sir W, Jones urges that the super-
lative " diligentissimus," is used alone by Gaius on the subject of hiring, other writers using
• the positive, and he ascribes it to his peculiar style ; and " diligens " is the word used by
Gothofred in the Gloss, Dig. uhi supra, and by Vinnius, Inst. lib. iii. t.xxv. 5. And the bailment
of hiring {locatio-conductio) being mutually beneficial, it is contrary to principle to require the
same extraordinary care as from a borro^/er who has the chattel solely for his own benefit.
And this rule is consistent with the decisions in Dean v. Keate, 3 Camp. 4. Cooper v. Barton,
Ibid. Iluber thus lays down the same distinction : " Contractus vel ineuntur in utriusque
commodum vel in alterutrius utilitatem duntaxat. Qui utriusque partis utilitatem continent
mediocri diligentid contenti sunt, levemque culpam recipiunt ; qui unius saltern commodum
spectant, hi vel continent utilitatem ejus qui de damno queritur, vel in ejus gratiam initi fuere
qui damnumfecit. Priori casu nil nisi lata culpa praestatur, posteriore levissima'* Hub. Pra;l.
Jur. Civ. lib. iii. tit. xv. lO.H

4. If goods be pawned, the pawnee has a special property,
which is in nature of a security, to compel the pawner to pay ;
and if the goods be the worse for using, the pawnee must not
use them ; as clothes Sfc. ; but if they be not the worse for using,
he may use them at his peril ; as jewels pawned to a lady, and
she keeps them in a box, and they are stolen, she shall not be
charged ; but if she goes abroad with them to a play, and there
they are stolen, she shall be answerable. 2dly, If the pawnbroker
be at charge in keeping them, as if it were a horse, and he gives
\\(b) As to use, jj. nieat, he may use it for his reasonable charge he has been at,
p^^506 it' Bracton, 99. (b) If a creditor takes a pawn, he is bound to

restore

(D) Remedy for Loss or Damage of the Thing hailed. 501

restore it upon payment; but if he, notwithstanding all his |1(5) According
diligence, lose it, he shall howsoever recover his debt, 29 Ass. *^o ^^'^ Saxon
pi. 28.; for the law does not lay upon him an obligation to keep co™™o"law,if
against all accidents ; but if the money be tendered, and he after perished by^
detains, and then it is lost, he shall then be liable, for he is then accident the
a wrong-doer, and his keeping it after is the occasion of its being pawnee could
stolen, and he is then answerable at all events, {b) h^'d^btF'^

his debtor ; but this was altered by an Electoral constitution as being contrary to equity, and
the loss was made to fall on the debtor. Huber Prael. Jur. Civ. t. i. p. 291. notd.^

5. Goods to be carried for a reward. 1 st. If you deliver them ||(c) This is the
to a public or common carrier, and they are stolen, he must be true reason of
liable, for the law charges him at all events; but yet the act of the earner's ex-
'O 1 iU • c ^i, J J.I • • tensive respon-
Cxod, or the enemies or the queen, may excuse; and this is a sibility andnot

"political institution by the laws of England, that people may be the hire, as
safe in their dealing , for otherwise, carriers, that are frequently mentioned by
trusted with things of great value, would be often tempted to \°{^}''^\
confederate with thieves, (c) 2dly, But he who has a particular g^j ggg tj't'
private employment, though he has a reward, yet he is not Carriers^
bound against all events, as a factor or a bailiff, if they do to the Vol. ii.
best of their power ; and that is Southcotfs case ; and he is bound ^^.^ ~ *^.P.'
no otherwise than as his master himself should do ; for it Were j^ the kind's
unjust to charge h'm with what he cannot prevent, {d) service, having

received on board bullion oi an individual, to be brought to this country for freight, on the arrival
of the ship, the bullion was lost; and onan action being brought, it was objected that it was illegal
in the defendant to take goods on freight contrary to 22 G. 2. c.33. But the court held,
whether it was illegal or not, the captain was liable for the loss of the bullion. Hatchwell v.
Cooke, 2 Marsh. R. 293.; and see Hodgson v. FuUarton, 4 Taunt. 787. But supposing the
carrying to be illegal, qu. whether the action would be maintainable ? See Langton v. Hughes,
1 Maule & S. 593. Cannan v. Bryce, 3 Barn. & A. 179. Bloxsome v. WilHaras, 3 fiam.&C
232. ; sed vide Hodgson v. Temple, 5 Taunt. 181.||

6. To this point, here is a man not intrusted to keep, but to
carry, and not to have any thing for his pains ; and he, through
his own negligence, miscarries ; though he be to have nothing,
yet it appears there was a neglect, and for that reason he is
chargeable; but if the goods had been misused by a third person
in the way as he carried them, and without any neglect of his, I
hold that lie would not then be liable, because he had nothing
for a reward. In Bracton, lib. 3. 100., this is called mandatum,
and ariseth upon the emendato, in English, acting by commission ;
and if he, through his negligence, suffer his goods to be damaged,
he is liable. Vinius's Comment upon Just. Inst. 684. ; mandatum
is there defined to be a contract whereby any thing is committed
gratis to be done for another; and with this agrees Bracton ^
and though this word be not used in any other book of the law,
and this be an old authority, yet in this point he is supported by
reason ; and, upon the whole, I am of opinion that the defendant
in this case is liable, for it is a deceit to the plaintiff his being
negligent; for it is upon the confidence of his carefulness that
the plaintiff intrusted him ; and in Godb. 64., and in 2 H. 7.,
for the negligent keeping of sheep, 4c«j an action lay; for there
is a consideration, viz. the trusting, thougli no money be paid ;

and

.\y

BAILMENT.

• These
words should
not be in-
serted, if not
warranted by
the fact, as I
conceive a
plaintiff would
be nonsuited if
Gibson v.
Inglis, 4 Camp.
72.

Shiells V.
Blackbume,
1 H. Black.
158.

Nelson V.
Mackintosh,
1 Stark. Ca.
237; and see
ant^, p. 506.

and here he becomes chargeable by the mischief he has done.
29 H. 6. 49. 33 H. 6. 34. 11 H. 4. 33. By these cases, though
a man promises to build a house for another, he shall not be
bound, being nudum pactum ; yet I doubt not but if he had once
gone about the building it, and he do it so ill that it falls, an
action would lie («); and in Yelv. 4. the plaintiff declared, that
in consideration that he delivered to the defendant twenty quarters
of corn, the defendant assumed upon request to deliver the corn
again to the plaintiff; and it was there held that the action lay;
but this judgment was after reversed in the Exchequer-chamber;
and contrary to it is a case in Yelv. 128. ; but in the same book
50., is the case, fol. 4., of Biggs and Riches, confirmed and allowed
good law; and there Gaudy ax\d the court held it a bad reversal;
and contrary to that reversal solemnly adjudged in 2 Cro. 667.
Now if a trust be once undertaken, that is a sufficient consider-
ation ; the cases in the Register, 1 ] 0., are full in point, for there
the very precedent is quod (the defendant) tam negligenter, &c.
camavit quud papa ilia confracta fait, without any mention of a
reward, or that he was a common carrier ; though in latter days
for the greater caution they insert these words, pro quadam
mercede * ,• so that he that is intrusted by commission, if he
enters upon the employment, and after any loss accrues to the
owner through his neglect, he is liable though he receive no
reward ; but if any loss accrues to the owner, not through any
neglect of his, though he receive a reward as a factor, Sfc, yet
shall not he be liable. So that upon this whole matter, I am of
opinion judgment ought to be given for the plaintiff,
he could not prove it.

II It has been held, that the London Dock Company are liable
for the negligence of their servants in unloading goods in the
docks, though they derive no profit from the labour, the owners
of the goods not being allowed to employ men.

Where a merchant gratuitously undertook to enter a parcel of
goods of A. B., together with some of his own at the custom-
house for exportation, and made a wrong entry, whereby both
parcels were seized ; it was held, that having taken the same
care of the goods of A. B. as of his own, and having no reward,
and not being of a profession which implied any particular skill
in what he had undertaken, he was not liable to an action for
the loss occasioned to A. B. ,• but Lord Loughborough said, if a
ship-broker or clerk in the custom-house had undertaken the
entry, a wrong entry by him would have been gross negligence.

Where a captain of a vessel undertook, though not for hire,
to carry the plaintiflPs box on board his vessel, and on the
voyage opened the box to see that it contained nothing contra-
band, and put the contents (a quantity of doubloons, dollars, Sfc.)
into a bag in the captain's chest, where his own valuables were
kept, and the chest was lost ; it was held, that the captain, on
opening the box, should at least have restored it to its former
state of security, and that he had, by intermeddling and altering
the custody of the plaintiff's money, imposed on himself the

duty

BANKRUPT. 5^3

duty of carefully guarding it against all perils; and a verdict was
found for the plaintiff.

And consistently with the case (p. 522.) cited by Lord Holt Elsee v. Gate-
from the Year Books, it was held, that a declaration, allegino- ward, 5 Term
that the plaintiff retained the defendant, a carpenter, to repair ^^' ^'^^'
a house before a given day, and that the defendant accepted
the retainer, but did not perform the work, was bad ; since there
was no reward, and it was a mere nonfeasance. But a count
stating that the plaintiff, being possessed of old materials, re-
tained the defendant to perform carpenters' work, and use the
materials, but that the defendant, instead of using them, used
new ones, increasing the expense, was good ; since it appeared
that the defendant entered on the work, and therefore his im-
proper performance was a misfeasance.

But in a late case, where the declaration stated, that in con- Dartnall v,
sideration the plaintiffs would retain the defendant to lay out Howard,
a sum of money on annuity, the defendant undertook to do his ^ '^^'■°' ^ ^•
duty in the premises, but that defendant laid out the money on
the mere personal security of a person insolvent, whereby the
plaintiffs lost the money, the declaration was held bad after
verdict ; since no reward was stated, and it was not stated that
the defendant acted corruptly or was grossly negligent. ||

See more on this subject, titles, " Carriers," " Inns and
Innkeepers," " Trover."

BANKRUPT.

n^HE granting of commissions of bankrupt seems to be derived nigett. lib. i7.
from the civil law, which constituted a guardian to a prodigal tit. 10. For the
in the same manner as to a madman ; and such guardian the tjofinition and
pretor appointed on the petition or application of relations, as J^ "Jy"oJ.j" ^
well as creditors : but the feudal law, though it admitted of com- 4 in^t^ .^7'-.
missions of lunacy ex necessitate^ would allow of none for pro- [2 Black. C.
digality ; that not being reckoned injurious, because such prodigal ^'^'^ ^^V, ^^tii
could not alien his lands without the leave of his lord : and far- ^ ^°P*^'^ *^^^
ther, the condition of a freeman was not to be altered without this subject,
the crime of felony. But, as trade and commerce increased, it « it can in no
was found necessary, for the support of credit, to introduce such 'J ««« be lesa^
a law amongst us, and therefore our acts of parliament have con- „ "ny^Jgate**
fined it to traders and creditors only. " the etymo-

" logy of a word, because the whole system of the bankrupt-law is founded upon positive
" statutes ; and no light can possibly be derived to the subject but what tends to elucidate
" them." Co. Bankrupt Laws, 1.] 2 Black. C. 474.

The

5U BANKRUPT.

Co. Bankrupt [The first statute noticing the crime of bankruptcy, was made
Laws, 3. against the Lombards, who, after they had made obHgations to

their creditors, suddenly escaped out of the realm : it was there-
fore enacted, " that if any merchant of the company acknow-
*' ledge himself bound in that manner, that then the company
** shall answer the debt ; so that another merchant, who is not of
•* the company, shall not be thereby aggrieved nor impeached."
But the first statute made concerning English bankrupts was
34- H. 8., which has been much altered by 13 Eliz., and other
subsequent statutes.
1 Burr. 474. It is to be observed, that all the acts concerning bankrupts

make but one system of law : they are, therefore, to be taken
together, and to be construed favourably for the benefit of credi-
2 Black. C. tors, and to suppress fraud: for though a bankrupt was for-
471. merly considered merely in the light of a criminal, and therefore

a strict construction might be expected, in conformity to the
universal practice in deciding upon penal statutes ; yet, at present,
the laws of bankruptcy are considered as laws calculated for tlie
benefit of trade, and founded on principles of humanity as well
as justice.]

We shall consider the laws of bankruptcy, as moulded by the
several acts of parliament, under the following heads :

(A) What Kind of Trade, Occupation, or Profession
a Man must be of, or of what Nation, before he
can be adjudged a Bankrupt, and what Acts he
must do, permit, or suffer, which will make him
one : Hand herein

1. Of the Trading.

2. Of the Acts of BanJcruptcy,

1. Of those Acts which are only such when done with

intent to delay or defeat Creditors.

2. Of those Acts which are Acts of Bankruptcy without

reference to the Intent. 1|

(B) Of the Commission of Bankrupt ; and herein of

the Creditors who may obtain it, and what they
are to do previous thereto.

of the Power they may exercise over the Bank-
rupt, or others, in discovering of the Bankrupt's
Estate.

(D) Of the Assignees; and herein of the -Manner

and Time of choosing them, Hof their Removalll
and Nature of their Trust, URights, and Duties. ||

(E) Of

(A) Who can be adjudged Bankrupt, S^x. (Trading.) 525

(E) Of* the Creditors, who are such ; and herein of

proving their Debts.

(F) Of the Bankrupt's Estate and Effects, to which the

Commissioners or Assignees are entitled, when
it shall be said to be vested in them ; and herein
of fraudulent Dispositions by the Bankrupt.
11(G) Of Property passing to the Assignee as being in
the reputed Ownership of the Bankrupt.

(H) Of the Relation to the Act of Bankruptcy ; and
to what Extent it is qualified.

(I) Of Actions and Suits by the Assignees, and Evi-
dence therein. II

(K) Of setting off, submitting to Arbitration, and
compounding Debts due to the Bankrupt.

(L) Of the Distribution to be made of the Bankrupt's
Estate.

(M) How the Bankrupt is to demean himself; and
herein of the Crime in not appearing, and dis-
covering his Estate, and the Privilege he is to
enjoy during his Attendance.

(N) Of the Surplus of the Estate, and the Allowances
to be made to the Bankrupt ; and herein of his
Discharge and Certificate.

[(O) Of Partners.]

(A) What Kind of Trade, Occupation, or Profession a
Man must be of, or of what Nation, before he can be
adjudged a Bankrupt, and what Acts he must do, per-
mit, or suffer, which will make him one : Hand herein

HI. Of the Trading.

jlT^HE new Bankrupt Act, by which the preceding statutes 6G.4.c.i6.§s;

are repealed, contains the following enactment, as to the The paru in
trades which subject a party to bankruptcy : " And be it "talics are
" enacted, that all bankers, brokers and persons using the "^*'
" trade or profession of a scrivener, receiving other men's
" moneys or estate into their trust or custody, and persons in-
*' suri7ig ships or their freight, or other matters, against perils of
" the sea, xvarehousemeti, 'wharfingers, packers, builders, cat^
" penters, s?iipwrights, victuallers, keepers of inns, taverns, hotels,
*' or coffeehouses, di/ers, printers, bleachers, fullers, calenderers,
" cattle or sheep salesmen, and all persons using the trade of
*' merchandize by way of bargaining, exchange, bartering, com-
" mission, consignment, or otherwise in gross or by retail, and

" all

5«6 BANKRUPT.

JlCa) These " all persons who, either for themselves or as agents, or factors
words are ^^ for others, seek then* living by buying and selling, ox{a)hy

Scotch seques- " buying or letting for hire, or by the iioorkmanship of goods or
tration act, " commodities, sliall be deemed traders liable to become bank-
and will in- « rupts ; provided that no farmer, grazier {b), common labourer
elude a nume- a ^^ workman for hire, receiver general of the taxes, or member
persons not " of or subscriber to any incorpm-ated, commercial {c), or trading
before subject " companies established by charter of act of' parliament, shall be
to bankruptcy. « deemed, as such, a trader liable by virtue of this act to be-
(6) Drovers « ^.^nje bankrupt."
were exempt-
ed in the former act, 5 G. 2. c. 30. § 40. ; but they are now liable to be bankrupts. A drover
is a person buying cattle in one place and driving thera for sale to another. Mills v. Hughes,
Willes, 590. Bolton V. Sowerby, 11 East, 274. (c)See 14Car.2. c. 24.|| [The manner in which the
trade to the East Indies was carried on at the time when this act passed was, by persons advancing
sums of money to the then incorporated company, in consideration whereof they became
partners, and the i-eturn of the cargo from the East Indies was distributed among them, either
specifically, or by account, in proportion to the sum advanced. It was not a dividend on a
given stock, but an actual participation, either on account, or in a specific return of goods.
8ir John Wolsteriholme^ a man of large fortune, had advanced a sum of money on the adventure
in the East India Company's trade, and he had received his return in specie, and disposed of
the goods ; and thereupon a question arose. Whether he was liable to a commission of bank-
rupt ? which the Court of King's Bench determined in the affirmative. In consequence of that
judgment, this statute was passed, which is declaratory, and annuls the judgment, as giving an
unjust construction to the statutes.]

6G. 4. c. 16. By § 135. the act is to be construed beneficially for creditors,
§ 135. and nothing therein contained shall alter the present practice

in bankruptcy, except where any such alteration is expressly
declared, and it shall extend to aliens, denizens and women,
both to make them subject thereto, and to entitle them to all
benefits given thereby, and that all powers given to, or duties
directed to be performed by the Lord Chancellor shall and may
be exercised or performed by a Lord Keeper or Lord Commis-
sioner of the Great Seal, and all powers given to, or duties
directed to be performed by the commissioners or assignees may
be exercised, and shall be performed by the major part of the
commissioners, or by one assignee, where only one shall have
been chosen, and nothing therein contained shall render in-
valid any commission of bankruptcy now subsisting, or which
shall be subsisting at the time this act shall take effect, or any
proceedings which may have been had thereunder, or affect or
lessen any right, claim, demand or remedy which any person
has now thereunder, or upon or against any bankrupt against
whom any commission has or shall have issued, except as is
therein specially enacted; and the act shall not extend either
to Scotland or Ireland, exept where the same are expressly
mentioned.

The descriptions of persons in the above section 2. are taken

from the former statutes, except the parts printed in italics, which

are now for the first time enacted. The decisions of the courts

as to such parts as are re-enacted still of course remain in force. ||

For though Upon the statutes which describe a bankrupt there have been

the commis- several resolutions, especially in the common law courts, the

sioners declare judges being the proper expositors of all acts of parliament ; and
im a hank- therefore the usual method, when bankruptcy is denied is f

Lord

rii'"t\e mav therefore the usual method, when bankruptcy is denied is for my

I ' J T r\vt\

(A) Who can be adjudged Bankrupt^ ^t. (Trading.) 527

Lord Chancellor to order it to be tried in a common law court, traverse it.

on an issue, banJirupt or not?(«) 8 Co. 121. a.

(a) Or by ac-
tion of trover, at the suit of the bankrupt, against the assignees, or the messenger.

[Every person being a trader, and capable of making binding Exparte Mey-
contracts, is liable to become a bankrupt ; as a nobleman, mem- ™**'» ^u^\
ber of the House of Commons, clergyman, Sfc. y Jones

Cowp. 745.

Infants and married women cannot be bankrupts. j^^ p^j.^^

Sydebothara, 1 Atk. 146. Bull. Ni.Pri.38. Rex v. Cole, 1 Ld. Raym. 443. ^Ex parte Barwis,
6 Ves. 601. Ex parte Moule, 14 Ves. 603. But where an infant had traded two years hold-
ing:; himself forth as an adult, the court refused to supersede the commission on his petition.
Ex parte Watson, 16 Ves. 265.; and by § 135. of the present act women are expressly sub-
jected to the act.|i

As to the latter, however, there are exceptions; ior a. feme Ex parte Car-
covert in London, being a sole trader according to the custom, is rington, i Atk.
liable to a commission of bankrupt, and her separate effects in ?P*?- ^^^'^ v.
trade may be seized and applied to the payment of her own debts g Burr.*'i776.
contracted in such separate trade. i Black. R.

570. S.C.

There is also another exception of a more doubtful nature, Co. Bankrupt
where Q.feme covert lives apart from her husband, acting as Bifeme Laws, so.
sole, he not being liable to her debts. If a woman under these cir-
cumstances, though not the wife or daughter of a freeman of
London, enters into trade, and contracts debts, it seems that
she is liable to a commission of bankruptcy. The statutes con-
tain no exception either of an infant ox feme covert: their inca-
pacity to be made bankrupt arises from the operations of a law,
which declares them incapable of making binding contracts. The
criterion, therefore, of a. feme covert being capable of coming
under the bankrupt laws, appears to be her liability to be sued
to execution for the debts she has contracted during coverture.
A commission of bankruptcy is considered as a statute execution.
If a married woman is so circumstanced as to be subject to a
common law execution, there does not appear to be any reason
why she should not likewise be subject to a statute execution.
And upon this principle it is presumed Lord Chancellor Apsley Ex parte
relied in the case of Mrs. Fitzgerald, in 1772, where it appeared Preston,
that Richard Fitzgerald, husband o(An?ie Fitzgerald, having for Green, 8.
some years carried on the business of a linen- draper in St. Giles
in the Fields, in the county of Middlesex, on the 14th March
1768, agreed upon a separation, when articles were accordingly
entered into for that purpose, and executed by and between them :
by these articles, Fitzgerald, in order to make provision for his
wife and children, and in consideration of 600/. then by him
taken to his own use out of his estate and effects, assigned to
trustees all his stock in trade, household goods, and all sums of
money due to him, and then outstanding on his books, together
with the said books, and the lease of his house, upon trust for
the said A7me, as her own separate estate, to be disposed of as

she

528 BANKRUPT.

(a) The autho- she should think fit, and to be by no means subject to the debts,
nty of this case control, or intermeddling of her said husband. And it was
firmed by sub- thereby further agreed, that the said An?ie should have the liberty
sequent de- of trading without any interruption from her said husband, she
cisions. Ring- paying all the debts then owing by him in trade, and maintain-
stead V. Lanes- jj^g their children at her own expense, and saving him harmless
Bankmp't ' from the same, and from all contracts and agreements to be
Laws, 32. Bar- thereafter entered into by her, either in the way of trade or
well V. Brooks, otherwise. The separation took place, and the husband received
h^' ^^p 1]°^' ^^^ 600/. to his own use ; and they ever after lived separate and

1 Term R. 5. ' ^P^^^ from each other, and he went to the East Indies. The said
llBut these A7ine was left in possession of effects to the amount of 900/., to
cases being be employed, and which were employed by her, in the said trade ;
now overruled ^^^^ ^^ buying and selling goods in that trade, she got her living
quent decisions ^"^ maintenance for herself and children, continuing in her hus-
of Marshall v. band's house, and there carrying on the business of a linen-
Rutton, draper, on her own account, and in her own name, as a sole
8 term K. 545. jc^^gj. j^g^j. f^^yj, years. In December 1771, a commission of
Nurse V. Craig, ii' ^t*' , . , ,i •-

2 New R. 148. bankrupt was taken out agamst her, when the commissioners

Beardv.Webb, refused to find her a bankrupt, because she was a feme covert

2 Bos. & Pull, residing in the county of Middlesex, and not ajeme sole merchant

Ht V ' t^^^^"g ^^ th^ City oi London: but, upon petition to the Lord

2 Bos. & Pull. Chancellor (counsel being heard on both sides), his lordship

226. which ordered the commissioners to proceed to find Mrs. Fitzgerald a

have restored bankrupt, and the messenger to take possession of her effects :

th t*' f ^^ and accordingly, she was afterwards declared a bankrupt, (a)

covert cannot be sued alone for debts, though contracted while living separate from her hus-
band with a separate maintenance, it follows that a commission of bankrupt cannot be sup-
ported against her in such case, but only in cases where she would be liable to be sued as a
feme sole ; as where the husband has abjured the realm, been transported, or the like. Cook's
B.L. 47. (8th edit.) Whitm.B.L. 5. Eden's B.L. l.||

Co. Bankrupt 'Bxxti^Sifemesole trader commits an act of bankruptcy, and
Laws, 44. £j? afterwards marries, and lives with her husband, she cannot be
f h't ] ^' made bankrupt. A commission of bankrupt issued 20th December
^ '1785, against Francis Mear, by the name o{ Frances the wife of
Henry Mear of Moseley in the parish of Yardley, in the county of
Warwick, before her intermarriage known by the name of Frances
Piper of Birmingham, in the county of Warwick, innholder.
She had before her marriage kept an inn in Birmingham, but had
declined business on 27th December 1784, previous to the date of
the commission, and on 14th February 1785, had intermarried
with Henry Mear. The act of bankruptcy was proved before
the commissioners to have been committed in October 1784.
Mear and his wife petitioned to supersede the commission, al-
leging that neither the petitioning creditor's debt, the trading,
nor the act of bankruptcy, could be proved, and also relying
upon the illegality of the commission, as having been issued
against a married woman. The Lord Chancellor was of opi-
nion, that the commission was illegally issued against the said
Frances Mear, upon the ground of her marriage ; and therefore
it was ordered to be superseded, without going into the other
obiections.
^ An

(A) Wtio can be adjudged Bankrupt, ^c. (Trading.) 529

An executor of a trader, who merely disposes of the testator's i Atk. 102.
stock, or buys things for the purpose of meliorating it, is not Comb. 185.
liable to be a bankrupt.] 1 Show. 294.

, , . , ^ , . Testator or-

dered tlie residue of his estate to be employed in carrying on his trade : this residue is liable
for all the debts of the trade. Hankey v. Hammond, at the Rolls, 1785. In Hankey v. Two-
good, Mich. 1785, hoY& Tkurlow expressed the same opinion; and also intimated, that the
executor carrying on the trade with it might be a bankrupt, even though his name did not
appear, and that he would be personally liable for the debts. Co. Bankrupt Laws, 84.

llBut if he carries on the trade with an intent of continuing Christ. B.L. i.
it indefinitely, and to make a general profit for himself, or of 75.
those beneficially entitled to the stock, he is a trader within the Eden's B. L. 5.
bankrupt law. ||

A shoemaker is within 13 Eliz. c. 7., for he lives by his credit Cro.Eliz. 268.

in buying leather, and selling it again in shoes, and not on his P'- 6. Cro.Car.

manual labour only, as labourers and husbandmen do; for the sMoA.SoO.

thing bought and sold under different forms is the leather ; and [(a) The la-

though the shoemaker's labour {a) is employed in the alteration of hour, in this

the form, yet men do not contract for the labour, but for the '^^^f.' '^ °."'^ '"
.1. ., !>. melioration ot

thing Itself. thecommo-

dity, and rendering it more fit for sale. A butcher hath been holden to be a trader within the
statutes ; and this, though the court expressed themselves very sensible of the inconvenience
of extending the bankrupt laws to persons whose living is undoubtedly gotten by mechanical
labour, with a mixture of buying and selling. Dalley v. Smith, 4 Burr. 2148.]

A weaver and dyer are within the statute, for they get their Cro. Jac. 584.
living by buying and selling, and therefore may have an action 1^*- *• H'^* *^'*
for calling them bankrupt. £?&"""

doubted, dyers are expressly mentioned in new act, 6 G. 4. c. 16. § 2.||

If one covenants with the king to victual the fleet at a certain Vent. 270. Sir
rate, and thereupon buys up a great quantity of provision, 4*^., Thomas Little-
though with the surplus he victuals merchants, yet being origin- *°"/ j"^®'
ally designed for the use of the navy, it will not make him a °
trader within the act; and it is one act or contract only, and not
a continued trading.

An innkeeper, as such, can be no bankrupt ; for though he Cro. Car. 549.
buys provisions to be spent in his house, yet he does not properly Jones, 437.
sell them, but utters them at such rates as he thinks reasonable, p^^^^j March
and the attendance of his servants, furniture of his house, ^-c. 35. S. C. 3 Lev.
are to be considered; and the statutes only mention merchants 309. S. P. ad-
that used to buy and sell in gross, or by retail, and such as get judged be-
their living by buying and selling; so that their principal sub- and Trigg,
sistence is by buying and selling: now the contracts with inn- Comb. i«i.
keepers are not for any commodities in specie, but they are con- S. C. 3 Mod.
tracts for house-room, trouble, attendance, lodging, and neces- ^I'ljj^y 2*68
saries, and therefore cannot come within the design of such ^^q Cnrth.*
words, since there is no trade carried on by buying and barter- 149. S C.
ing commodities; and though in this case a jury should find that Salk.iog. s.C.
the innkeeper got his living by buying and selling, it would not ^ j"* J^'^*^^ ^^
bring him within the statute, for the reasons aforesaid. Bigg. Upon the

authority of these cases, it hath been adjudged, contrary to an obiter opinion of Ld. lIoU, in
1 Ld. Raym. 287. and 12 Mod. 159., that a victualler, qua victualler, is not an object ol the
bankrupt laws, even though he may occasionally sell liquors out of the house in small retail
quantities, if the sale be confined to particular friends. Saundcrson v. Rowles, 4 Burr. 2064.
' Vol. I. Mm P«f'^'"S

530

BANKRUPT.

Comb. 181.
5 Mod. 527.
Ex parte
Walker v.

Perking v. Proctor, 2 Wils. 382. But if an imirkeeper or a victualler sell liquors out of thej
house to any one who applies, that will subject them to the laws, however small the quantitiesj
gold may happen to be. Patman v. Vaughan, 1 Term R. 572. Priest v. Pidgeon, B. R. 12 G. .~j
Willet V. Edmonds, B.R. 13G.3. 1773. Co. Bankrupt Laws, 49. JlThese distinctions are!
now done away by the new act 6 G. 4. c. 16. §2. which expressly enacts that all " vic-i
tuallers, keepers of inns, taverns, hotels, or coffee-houses," shall be traders liable to become!
bankrupt.|l

[A schoolmaster who buys books to sell to his scholars, or the'

owner of a mine who buys candles to sell to his workmen, cannot

be bankrupts.]

Harvey, 22d November 1788. Ex parte Craddock, 21st Dec. 1792. Co. Bankrupt Laws, 74.
It was formerly holden, that, if the buying and selling be in proportion to any other way the^
party hath of living, he may be a bankrupt ; and, upon this principle, a farmer, who bought
and sold very large quantities of such things as were the produce of his farm, was adjudged a
bankrupt. Mayo v. Archer, 1 Stra. 513. 8 Mod. 46. S. C. Buscall v. Hogg, 3 Wils. 146.
S. P. ; but see iiifra.

6Ves. R.3. II Nor can a colonel of a fencible regiment who merely sells

horses occasionally at TattersalVs.
Summersett v. Nor a person who keeps hounds, and who buys dead horses

Jarvis, 3 Brod. for their use, and afterwards sells off the skins and bones.
& B. 2.

Nor a person who, finding he has more than he wants of a
commodity, merely sells off the residue.

Bolton v- Sow-
erby, 1 1 East,
276.
Carter v.
Dean,

1 Swanst. 64.
Heamy v.
Birch, 3 Camp.
R. 235.

Gale V. Half-
knight,

Nor a cowkeeper who lives by selling milk, and when any
cows become unfit for use, sells them off.

But a fisherman who buys fish at sea of other fishermen to
fill up his cargo, and brings them for sale to London, is a trader
within the bankrupt laws, though he only buy during one
season.

In all such cases it is a question for a jury whether there is
evidence of an intention to deal generally. ||

3 Stark. 56. ; and see 14 Ves, 603. 1 Rose, 84,

3 Mod. 155. A carpenter that sells wrouuht timber seems

to be within
(a) But a ship- the Statute, for he sells the materials, though altered by his
carpenter is. workmanship, so that he gets his living by buying in and selling
lllii the'e G 4 ^^^ ^^^ timber; but otherwise it seems it is of a mere working
C.16. §2. carpenter, (a)

"carpenters" and '■' shipivrights" are expressly named ; but the proviso excepting common
" labourers or workmen for hire," prevents a mere working carpenter from being liable to
bankruptcy.||

II It was formerly decided that a builder was not a trader
within the bankrupt laws; but the new act 6 G. 4. c. 16. §2.
expressly includes builders. || j

The buying part of a ship makes no trading, because it is naf
buying and selling within the statute ; but the buying part in the
ship, and the party's employing it in carrying and re-carrying
goods for himself, is an evidence of trade, because the export-
ation and importation of goods is the business of a merchant ;
but if a man buys a part of a ship which he lets to freight, this is
no evidence of trade (i), for there is no exportation or import-
ation ; and if he repairs a ship, which is usual on the credit of
the bottom, and afterwards takes a share in it for his debt, and
employs the ship in exportation, it has been holden by some,

that

5Esp. 147.
2 Camp. 300.

Sid. 411. Vent.
29. 2Keb.487.
Comb. ISl.
S.P.p}4Ves.
168. This
seems within
the words of
the late act,
" buying and
" letting for
"hire." 6G.4.
c. 16. $2.j|

(A) Who can be admdged Bankrupt^ ^c. (Trading.) 5S1

that since this is compulsory upon him, having no other way to
obtain his debt, it shall not be taken as an evidence of tradino-,
because it is only accidental, and not the way the party hath put
himself in to get his livelihood.

A man's buying and selling brings him not within the statutes, March, 35.
for they intend such as gain the greatest part of their living ^'■"- ^^'■* ^^^•
thereby ; and therefore where a farmer bought and sold cattle (a), gg^"^* g^^* j^
it was adjudged that he was not a bankrupt, for a farmer is not later cases[ it
within the statutes, because he only sells the profits originally liath been es-
raised from the ground ; and if he buys in commodities, and tabhshed, that
sells them again, this is only accidental. j.j,g t^^fiin^ jj

not material ; ||see 2 Taunt. R. 1 76.J] that the true criterion is whether the party means to sell
(with a view to profit) to any person who applies for the commodity in which he professeth to
deal. The intention of the party to trade in such commodity, is a question of fact to be left
to a jury. IJThe question in such cases is, whether the buying and selling of the articles is
with a view of making a profit as a trader, or whether it is merely ancillary to the profitable
occupation of the farm. Patten v. Browne, 7 Taunt. 409. Stewart v. Ball, 2 New R. 78.
Bolton V. Sowerby, 1 1 East, 274. Hale v. Small, 5 Moo. 58.|| Where a farmer bought horses
not calculated for the fanning business, and for the express purpose of selling again, it was
holden, that he made himself an object of the bankrupt laws : whether more or fewer instances
of his so buying and selling, it was said, was proper for the consideration of the jnry. Bar-
tholomew V. Sherwood, 1 Term R. 513. ||See Wright v. Bird, 1 Price, 20.|| (a) See stat.
5 G. 2. c. 50. § 40. [A person buys cattle at a fair, keeps them three or four days, and then
drives them to another fair to sell them, he is a drover within this statute of 5 G. 2., and can-
not be a bankrupt. Bull. Ni. Pri. 39.] ||But such person might now be a bankrupt, as drovers
are not excepted in the late act 6 G. 4. c. 16.1|

[If a man manufactures the produce of his own land, as a
necessary or usual mode of reaping or enjoying that produce, and
bringing it advantageously to market, he shall not be considered
as a trader, though he buy the necessary ingredients and ma-
terials to fit it for market: as in the case of a farmer buying
rennet and salt, to convert his milk into cheese ; or making his
apples into cider. So in the case of alum works ; the rude mass Newton v.
of which is the rock, which is dug, burned, steeped, and boiled Newton, Co.
in lead, and then mixed with kelp, lees, and urine. Such also is ^^^"'''■upt
the case of coal-mines (6), where raising the coals out of the pit (^)Portv.
is as necessary to the enjoyment of that species of produce, as Turton,
reaping and threshing corn is to the enjoyment of corn. But aWils. 169.
where the produce of the land is merely the raw material of a
manufacture, and used as such, and not as the mode of raising
such produce, where the soil is manufactured and converted into
quite another thing, there in truth the party is and ought to be
considered as a trader. And such seems to be the case of brick-
making. With respect, however, to this species of manufacture,
cases have arisen, wherein the question. Whether it will bring a
man within the bankrupt laws? hath been much agitated: and
as this question hath, from accident, not been finally settled, we
shall state the facts at large. Upon a petition for a new trial, an Ex parte Har
issue having been directed to try, whether the petitioner was or J^Jo"« > ^i".
was not a bankrupt, .1 appeared from the report to liave been ' ' ^'''
proved, that the petitioner, who was a farmer, renting a farm of
upwards of 100/. a-year, made bricks of earth taken olF the
waste without any licence from the lord (to whom he afterwards

M m 2 paid

5S2 BANKRUPT.

paid a consideration) ; that he used a kiln for the purpose, not
built by him himself, and had, at various times, made from
40,000 to 70,000 bricks every year, and sold different quantities;,
sometimes only to certain persons, and sometimes generally to
all who came for them. It was further in evidence, that the kiln
was a small one, not fit for making more than 7000 bricks at a
time. One of the witnesses swore he was employed by the
bankrupt to make bricks at a certain price, and that he sold
them at an advanced value. Mr. Justice Buller, who tried the
cause, told the jury that the question was, whether the bankrupt
kept a public sale kiln ? if he did, it was a trading within th(i
bankrupt laws ; but if it was a mere private kiln for his own use,
and that having too many, he had only sold to a neighbour, that
would not be such a trading. The jury found that it was a
public sale-kiln, and gave a verdict for the assignees ; and Lord
Thurloiso C. refused to grant a new trial. " Purchasing the
" earth," said his lordship, " might, and he thought it would,
** be holden to be for the purpose of carrying on the trade of a
** brick-maker. Here the earth was not indeed purchased, but
" taken by way of trespass, purged by the subsequent consider-
** ation, which would amount to obtaining a license, and that
^* brings it within the bankrupt laws ; that it was not to improve
** his own estate, but a purchasing of the earth by license, an-
** ciliary to carrying on the trade of a brick-maker."
Co. Bankrupt I" ^^^ case of Parker v. Wells, there was a special verdict.
Laws, 61. which stated a demise from the Archbishop of Canterbury, in

1 Term R. 34. the year 1767, to John Parker, the father of the plaintiff, of an
jyg*^' ■ ' extensive farm of 800 acres, in which there was a parcel of brick
ground, for 21 years. It stated similar demises to John Parker,
the father, prior to that in 1767; and also a subsequent similar
one to the plaintiff in 1780: it stated further, that one William
Berand, for 20 years and more, before the year 1768, rented
the said parcel of brick ground from the said John Parker, the
father, and made and sold bricks there. That the said W.
Berand died in 1768; and upon his death the plaintiff took the
said brick ground into his own possession, and then and there
bought certain materials and necessary things, which were of the
said W. Berand, in his lifetime, used in making bricks there
' at the valuation of 130/., and then and there made bricks and
tiles of the earth there, and sold them; and that, during the
time the plaintiff so held the said land, he made bricks and tiles
for sale of the earth or clay arising from the brick grounds, and
bought sand and fuel, which were necessary ingredients for con-
verting the earth and clay into bricks and tiles. Upon these facts
the Court of C. P. gave judgment for the plaintiff, holding that
he was not a bankrupt, the business of brick-making being carried
on by him, merely as a mode of enjoying the profits of a real estate.
This judgment, however, was reversed by the Court of K. B.
Upon a writ of error from the judgment of this last court, the
following questions were put to the judges, by order of the
House of Lords, 1. Whether tlie finding on this verdict be

sufficient

(A; fVho can be adjudged Bankrupt, (^-c. (Trading.) 533

sufficient whereupon to give final judgment? 2. If the finding
be insufficient, what award ought to be made on such finding?
3. If the finding be sufficient, whether upon such findino- the
plaintiff in error appears to be a trader within the true intent
and meaning of the statutes concerning bankrupts? The judges Dom.Proc.
present were unanimously of opinion on the first question, in the '5th May
negative; and upon the second, that a venire facias de novo ought ^^®^*
to be awarded ; whereupon the judgments both of the Court of
C. P. and of K. B. were reversed ; and it was adjudged, that the
Court of King's Bench do award a venire facias de novo. The
plaintiff did not proceed on the venire facias de novo, but another
action was brought by agreement of the parties in the Court of
K. B. Buller J., previous to summing up the evidence, told
the jury there were three questions for them to determine.
1st, Whether Par/r^r carried on the trade of making and seUing
bricks and tiles for sale, for the purpose of drawing a profit
therefrom ? 2d, How long he carried on trade for that purpose,
whether from the 23d o^ June 1768, when Berand dXed, to the
time of his absconding, which was on the 7th Januaiy 1783, or
from what time to what time ? 3d, Whether he was a joint oc-
cupier of the farm with his father, or the father had the sole
beneficial enjoyment of the farm to his death? 1st. The jury
found that the plaintiff did carry on the trade of making bricks
and tiles for sale, for the purpose of drawing a profit therefrom.
2d. Tliat he carried on the trade for that purpose, from the 23d of
June 1768, \i\\&Ci Berand died, to Michaelmas 1778.; that he
ceased to make bricks at Michaelmas 1778, and he also ceased to
sell them on the same day. 3d. That the father had the sole en-
joyment of the farm to the time of his death. This finding was
to have been drawn up as a special verdict ; but, as it appeared
that Mr. Parker had left off brick-making before the petitioning
creditor's debt accrued, the defendants waived a special verdict,
and a general one was entered for the plaintiff. Another com-
mission was afterwards taken out by a creditor, prior to Parker's
quitting brick-making, which commission was submitted to.]

II The judgment of the C. B. in the above case has been sup- Sutton v.
ported by a subsequent case, where it was held that a devisee for Weeley,
life of an estate, part of which is a brick ground, who makes bricks ' *^"*'» ^**' *
on it for sale generally with a view to profit, is not a trader within
the bankrupt law, though he purchase the coals and some of the
wood used in burning the bricks, and though he occupied the
brick ground as a brick-maker for some time before it came to
him by devise ; for this is only a more beneficial mode of enjoy-
ing his own estate, by carrying the soil to market in an ame-
liorated state, and is not a buying of any commodity to sell pjcmrteGol-
again, within the meaning of the bankrupt laws, nor does it fall Hmore, a Rose,
within the principle of them, since they were levelled against 424.; and see
those who get great substance of other men's goods into their Heanc y. Ro-
hands upon credit : and Lord Eldon has held that any person P^7' ^ctV*^!!^

1 ^ t • /'.ii -111- •'*jOtL'. 577. acc»

whatever havmg a freehold or term m the land is not a trader

M m 3 for

Paul V. Dow-
ling, I Moo. &
Malk. 263.

Ex parte
Ridge, 1 Ves.
& Bea. 560.

Ex parte

Gardner, ibid.

45.

Exparte Mey-

mot, 1 Atk.

196.

Cobb V.

High more v.
Molloy, 1 Atk.
206.

534 BANKRUPT.

for making bricks from the produce of it; but if he purchases the
materials he is.

So also though the landowner buys chalk to burn with the
bricks, and then sells the bricks and the lime produced from the
chalk, he is not a trader, if his only object in buying the chalk
be the more convenient burning of the bricks, and not the profit,
derived from the lime. j

So also a farmer making lime from a lime-pit on his farm,,
and selling the surplus beyond what he uses on the farm, is not
a trader.

Nor the proprietor of a quarry delving or cutting stones for
sale from it.||

[A person who hath dealt merely in running and smuggling
goods, though it is an offence, and contrary to an act of parlia-
ment, is still a trader within the meaning of the bankrupt acts,
and liable to a commission.]

II And so also a person trading as an unlicensed horse-dealer. ||
Syraonds, 5 Barn. & Aid. 516. Wright v. Bird, 1 Price, 20.

[luord Hardwicke was inclined to think a pawnbroker within the
bankrupt acts, and especially within the 39th clause of 5 G. 2.,
the words of which are, " Whereas pei'sons dealing as bankers,
" brokers, and factors, are frequently intrusted with great sums
" of money, and with goods and effects of very great value be-
*' longing to other persons ; it is hereby further enacted, that
" such bankers, brokers, and factors shall be, and hereby are
" declared to be, subject and liable to this and other the statutes
" made concerning bankrupts : " for, he said, though pawn-
brokers are not expressly named, yet the general word broker is
the genus, and all other kinds of brokerage the species.]

11 This decision was confirmed in a late case; in which it was
also held that a person who had ceased to receive pledges, but
continued to sell off the unredeemed pledges, was co7itinuing
to trade as a pawnbroker, and was therefore liable to be a
bankrupt.

Whether an insurance-broker is or is not within the meaning
of the word broker in the bankrupt law, has been discussed but
been observed "°^ decided. It was argued that he was not, since he was not,
that this argu- like other brokers, a person intrusted with " sums of money and
ment is re- " effects of great value," according to the recital in 5 G. 2.
moved by the c. SO. § 39. (a)
late act which ■' ^

contains no such recital, Eden. B. L. 6., and it is of course equally taken away in the above
case of a pawnbroker, though it was entirely on the effect of this recital, that pawnbrokers
w^ere held in the above cases within the bankrupt laws.

Pott V. Tur-
ner, 6 Bing.
704.

Rawlinson v.

Pearson,
5 Bam. & Aid
124.; and see
1 M00.&
Malk. 263.

Ex parte Ste-
vens, 4 Madd.

Ex parte
Bell, 15 Ves.
355.

A ship-broker has been held within the late act, and the court
considered that the words " receiving other men's moneys or
estate into their trust or custody," applied not only to scriveners,
the next immediate antecedent, but also bankers and brokers.

The new act also includes " persons insuring ships or their
" freights, or other matters, against perils of the sea," who were
not formerly liable to be bankrupt; and under this description

(A) TVho can be adjudged Banh^upt, &;c. (Trading.) 553

an underwriter might probably now be a bankrupt, though it

was held he was not within the former acts.jj

[The clause in 5 G. 2. relating to dealers as bankers, took its Ex parte \s"\!i-

rise from that part of 21 Jac. 1., relating to scriveners, who were *'^"» ^ ^''^•

more numerous than in latter days ; for bankers having taken ^^^* P'^lH*^"

■ ^ , . V J -^ /. 1 arc named m

upon them to act as scriveners, have made it necessary tor the the new act

legislature to add bankers ; and a person acting as a banker § 2.J|

will be considered as such, although he does not keep an open

shop.]

II Scriveners are mentioned in the late act in the same language Adams v, Mal-
as in 21 Jac. 1. c. 19. § 2. as " persons using the trade or pro- ^^"^' ^^^'"J^^^
*' fession of a scrivener receiving other men's moneys or estates Malkin, 2 Ves.
*' into their trust or custody;" and it is held that, in order to &Bea. 5i.
make a man a money scrivener, he must carry on the business of Hutchinson v,
being trusted with other people's monies, to lay out for them as j HqU^^p q
occasion offers ; and if an attorney takes procuration for loans 507.; and see
as well as his fees as an attorney, acting in the former capacity 2 Scho. & Lef.
to such an extent as to afford evidence of his intention always to ^^^^*P'
do so, he may be the object of a commission as a scrivener.|| ...

[Drawing and re-drawing bills of exchange may or may not
be exercising trade and merchandize ; it depends upon circum-
stances ; it is a question of law upon the fact. Drawing and Richardson v.
re-drawing for large sums, and for a long time, though no com- Bradshaw,
mission money be allowed, it was adjudged would make a man \/^^\' ^f^/
a bankrupt ; secus, where a party drew bills upon his own ac- j^^^^ Cowp.
count, at the expense of paying a quarter per cent, commission 745.
besides interest at 5 per cent., for their being discounted, and bor-
rowed accommodation-notes in exchange for his own to the same
amount.

Buying and selling bank stock or other government securities c^i^ y. Net-
will not make a man a bankrupt. terville, 2 P.

Wms. 308 . II Vide Eden's- B. L. 1 0-H

Lord C.J. Holt inclined to think that a share in the Sta- Bird v. Mayor,
tioners* Company would not make a man a bankrupt; but Lord sLd.Rayui.
XT 7T^ • /^ u 1 1 .u • 851. But now

Keeper n right held otherwise. ^, ^^^ i^jg ^^^

G G. 4. c. 16. § 2. no member of or subscriber to any incorporated commercial or trading com-
panies established by charter or act of parliament shall be deemed as such a trader liable to
become bankrupt.||

A man who lives by buying only, or selling only, cannot be a Com. Dig. tit.
bankrupt.] Bankrupt.

II The publisher of a newspaper who buys the whole daily im- Gimmingbam
pression from the proprietors, and resells it at a profit, and bears ^•J'/'""S»
the loss of such as remain unsold, is a trader within the bank- ^ ^*^""- 236.
rupt laws. II

[There can be no such thing as an equitable bankruptcy ; it must Small v. Oud-
be a /f^a/ one.] ley, a P. Wms.

^ -' 489.

If a man contracts a debt while he is a trader, and after leaves Palm. 325.
off, and lives upon his estate in the countrj', and then absconds Vent. 5. Lev.
for this debt, he is a bankrupt, because he lived by his trade when ^r ^^^^^'
the debt was contracted; but if a merchant leaves off his trade, Cotton's case,
and after contracts debts, and then sells ofl'the surplusage of his 3Kcb.45i.

M m * goods

536 BANKRUPT.

(a) Tamen goods, but hath neither factor, correspondent, nor packer, he is

fe^^ul no bankrupt, (a)

■where the same case comes on again, the court holds that he is a bankrupt ; otherwise the
mischief would be great, for men cannot take notice when another withdraws his trade, or
when he commands his factors beyond sea to deal no farther for him; but they seeing great
quantities of goods and merchandize in his hands, are apt to trust him ; so that it is fit they
should be relieved by the statutes.

Ex parte Vau || jf jg ^ow settled that the question, whether or not a trader
402. Wharam' ^^^ ceased his trading, does not depend upon the mere discon-
V. Routledge, tinuance of it, or the absence of any specific acts of trading, but
5Esp.R.235. upon the circumstance whether there be an intention to exercise
Ex parte q,. resume it, which is a question for a jury.||

.357.

Sid. 411. Vent. If a trader gives over his trade, and then contracts debts, and
5. Comb. 465. then goes into trade again upon a new stock, it seems upon the
295 ^^ t *^f ■ P^^'^'o" of such intermediate creditors he cannot be made a bank-
person leaves rupt, because such creditors did not trust him upon the credit
goods in the of his trade.

hands of another to be disposed of, and is to be partner with him in loss and gain, he may be
a bankrupt, for he still carries on his trade by proxy. Palm. 325. But the having of a joint
stock does not make a bankrupt, without some proof of a disposal thereof; for otherwise
there is no commerce driven. 2 Keb. 487.

Palm. 325. If a trader becomes security for another, he is a bankrupt

within the statute, because he is trusted upon the reputation of
his stock and dealings, as well wher^ he is security, as where he
contracts for his own debts.
Raym. 375. A man buys in EngUmd only, and sells in Ireland, he may be

Dowesworth a bankrupt, for many merchants buy beyond sea, and sell in
'^ Jo^"^i4T"' ^ng^and only, and others buy here, and sell beyond sea; for it
S. C. 2 Vern! ^^ trading that makes a man capable of being a bankrupt.
162. S.C. cited.

Salk. 110. A gentleman of the Temple went from thence to Lisbon, where

« \f" ^'i^ ^^^ ^^ turned factor, and traded to England, and broke : it was
a trfaT at ba" insisted upon that the statutes of bankrupt did not extend to per-
[See the same sons out of the realm, the subject of them being cases of arrests,
point reluc- outlawries, and departing the realm ; and that the 21 Jac. 1. c. 19.
tantly ruled by which extends to aliens, is to be understood of aliens here : but
L .Hard- ^^^q court held him a bankrupt by reason of his trading hitlier
wicke, upon i i_ i • i • i • i i • "^ j- i

the authority ^"d back again, which gamed him a credit here.

of this case, in the matter of Astley, Ex parte Smith, cited in Cowp. 402., and Ex parte Wil-
liamson, 1 Atk. 82. And, conformably to these decisions, it is now settled, that if a merchant
who trades to England, but who is a native of, and hath been constantly resident in, a country
not subject to the English laws concerning bankrupts, comes into this countrj', and commits
an act of bankruptcy, he becomes an object of the bankrupt laws. Alexander v. Vaughan,
Cowp. 398. Ingliss v. Grant, 5 Term R. 550. S. P. ||Williams v. Nunn, 1 Taunt. 270. Allen
V. Cannon, 4 Barn. & Aid. 418.1| But the act of bankruptcy must be committed here : that
cannot be committed abroad. Jbid.

„ II A trading which ceased before the 6 G. 4. c. 16. took effect,

Ellison ^^'1^ "o^ support a commission issued after that time.H

9 Bam. & C. 750. ; and see 1 Mont. & Mac. 287.

I|2. Of

(A) Who can be adjudged Bankrupt, &;c. (Act of Bankruptcy.) 537

112. Of the Acts of Banh-uptcy : And Jieiein

1. Of those Acts which are only such when done with

intent to delay or defeat Creditors.

2. Of those Acts which are Acts of Bankruptcy, without

reference to the Intent.

1. The acts of bankruptcy of the first kind are enumerated in fiG. 4. c. 16.
section 3. of the new act. " And be it enacted, that if any such § ^- .
*' trader shall depart this realm, or being out of this realm shall ^j^^g made by
" remain abroad, or depart from his dwelling-house, or other- the new act
" wise absent himself, or begin to keep his house, or suffer him- are printed in
*' self to be arrested for any debt not due, or yield himself to I^""*
" prison, or suffer himself to be outlawed, or procure himself
" to be arrested, or his goods, money or chattels to be attached,
" or sequestrated, or taken in execution, or make or cause to be
" made, either tsoithin this realm or elsexvhere, any fraudulent grant
" or conveyance of any of his lands, tenements, goods or chattels,
" or make or cause to be made any fraudulent surrender of any of
*' his copyhold lands or tenements, or make or cause to be made
" any fraudulent gift, delivery or transfer of any of his goods or
" chattels, every such trader doing, suffering, procuring, exe-
*' cuting, permitting, making or causing to be made any of the
" acts, deeds or matters aforesaid, with intent to defeat or delay
*• his creditors, shall be deemed thereby to have committed an
" act of bankruptcy."

Departing the Realm. || [Departing the realm will not be an Ex parte
act of bankruptcy, unless done with a view of defrauding or de- Gulston,
laying creditors: but if it appear that they are in fact delayed 1 ^ f/^"^'.
by such absence, it will be the same as if the original departure Bankrupt
had been fraudulent. Laws, so.

Therefore one Woodier, a mercer on Ludgate-hill, who fled Bull. Ni. Pri.

bevond sea for the murder of his wife, whereby his creditors 59. See a con-

were prevented from recoverinij their debts, was holden to have "rp^uon oi
. o ' this Ccisc in

committed an act of bankruptcy.] Raikes v.

Poreau, cor. Bidler J., London Sittings after Trin. Term 1786. Co. Bankrupt Laws, 92.

II However it had been settled before the new act, that unless Fowler v.
the departure was with intent to delay creditors, it did not con- Pa(lget,7Term
stitute an act of bankruptcy, although creditors were in fact H. 509. Ex
delayed by it; and in one of these cases (7 Term R.516.) Lai^- ^vS.stT^'
rence J. reconciled the cases of Woodier, and Raikes v. Poreau, j^^ parte bs-
with this doctrine, since though it was not the immediate object borne, i Ves.
of the parties in those cases to delay their creditors by going ^^<="- ^'^*^*
abroad, yet as that must be the necessary consequence of such Barberi^HoIt
an act, it would be evidence of their intending to delay them. 175,. and see*
Ramsbottom v. Lewis, 1 Camp. 279. Holroyd v. Whitehead, 5 Camp. 530.

And it had also been settled, that if the act was done with tlie {^"J^J^'',^^" ^•
intent to delay, it was not necessary that delay to a creditor J*'^^^ '^^^^
should actually take place.

And accordingly, in the new act, the words, " or whereby
" creditors may be defeated or delayed," arc omitted. ||

[But

BANKRUPT.

[But a trader going abroad, to avoid performing a duty, will
not therefore be a bankrupt ; as if it be to avoid an arrest upon
an excommunicato capiendo, or the service of process to enforce a
decree in Chancery, unless it be a decree for the payment of
money : but if creditors, by such absence, are delayed and de-
frauded, it then becomes an act of bankruptcy, according to the
principle of Woodier'a case, and that above referred to.] || But see
supra. II

II The word realm, means nothing more than the extent
of the jurisdiction of the courts of England, for if a trader
leave this country and go to Ireland, with intent to delay his
creditors, it will be an act of bankruptcy within this clause ; and
if a trader residing in Ireland, or elsewhere, come to this country
jiarte Osborne, upon some temporary business, and again quit it to avoid being
Rose, 587. arrested by a creditor, it is a departing this realm within the
meaning of the statute, although the trader is returning to his
own home.

But where a trader having business both in England and
Spain, goes to the latter country to look after his concerns, his
departure is not an act of bankruptcy, though his creditors are
delayed ; but if he is actuated also by the fear of arrest, then it
is otherwise.

2. Or, being out of the Realm, shall remain Abroad.\\
Before the late act, it had been laid down, that [though a
trader depart the realm in good circumstances, yet if he run in
debt, and defer his return in order to avoid arrests, this is tant-
amount to his departing in order to defraud his creditors.]

II And Lord Ellenborough had held that a person remaining
abroad to delay his creditors, committed an act of bankruptcy,
under the words, " otherwise absent himself," in the statute
1 Jac. 1. c. 15. ; but this decision would seem to be inconsistent
with the principle, that the act of bankruptcy must be committed
in England. The above additional words were therefore intro-
duced into the act, in order to make the remaining abroad with
intent to delay the creditors, a clear act of bankruptcy, though
written'^'bv the ^^^^ original departure might not be with that intent, (a)
bankrupt abroad are evidence of his object in departing. See Rawson v. Haigh, 2 Bin^

ir38

Co. Bankrupt
Laws, 93.
iJEden, B. L.
1 5. ; and see
3 Stark Ca.
151.11

Williams v.
Nunn,

1 Taunt. 270. ;
and see Wind-
ham V. Pater-
son, 4 Carap.
289. Ex

Warner V.Bar-
ber, 1 Holt's
Ca. 17 J.

Vin. Abr. tit.
Creditor and
Bankrupt, 59.

Windham v.
Paterson,
4 Camp, R.
286.

(a) It will
now, there-
fore, be unne-
cessary to
consider how
far letters

6G.4.
$3.

C. 16.

Robertson v.
Liddell,
9 East, 487.

Fowler v.

Padgett,

7 Term R. 509.

Holroyd v.
Whitehead,
5 Camp. 530.

Co. B. L. 99.
Lin^ood v.

^99.

S. Or depart from his Diaelling-House. This also may or may
not be an act of bankruptcy, according to the motive by which
the trader is influenced.

If it is done with the inter/t to delay a creditor, it is an act of
bankruptcy ; and this whether he be actually delayed or not.

If not done with this intent, it is not an act of bankruptcy,
though delay be actually occasioned by it.
Ex parte Osborne, 2Ves.& B. 177.

If the trader leaves his house without making arrangement for
continuing his business, and under such circumstances that his
establishment must necessarily be broken up, his intent to delay
his creditors may be inferred.

The absence must be voluntary, and not occasioned by an'
arrest. It must be to avoid a debt, and not merely to avoid

performing

(A) Who can be adjudged Bankrupt, S;c. (Act of Bankruptcy.) 539

performing a duty : therefore if the trader depart to avoid an at- Eade, i Atk.
tachment for nondelivery of goods according to an award, it is ^^^•
not an act of bankruptcy ; but it is otherwise if the attachment
be for nonpayment of money.

If a trader depart his house to avoid an arrest, knowing a Ex parte
writ to be out against him, this is an act of bankruptcy, though Bamford,

he have an erroneous idea that the officer has the writ with him. ^^ yes.449.;

and see
1 Maule & S. 676.
The length of absence is immaterial, the act of bankruptcy Holroyd v.

beinfT committed the moment the trader leaves his house. Gwynne,

° 2 Taunt. 176.

Spencer v. Billing, 3Camp.3l2. Ex parte Gardner, 1 Ves. & Bea. 45.

A departure from a temporary abode, where the trader carries Bigg v.

on his business, if with intent to delay creditors, is an act of ^^°"!5'

, , , ' J ' 2Esp. 651.

bankruptcy. Vincent v.

Prater, 4 Taunt. 604. Spencer v. Billing, 1 Camp. 310. Holroyd v. Gwynne, 2 Taunt. 176.
The question of the trader's intention in leaving his dwelling- Capper v. De-
house is a question of fact for the jury. ^^??^'

Where two partners left their house, avowedly for the purpose Deffle v. De-
of getting two bills discounted, it was left to the jury whether sanges,
this w^as their real object, or whether they departed with intent ^ Taunt. 67 1.
to delay their creditors, and the jury having found the latter, the
court refused to disturb the verdict.

Where a trader, on hearing that a creditor had called for Vincent v.
money, left a message for him, that he could not spare, and Prater,
would not let him have it, and that he should go out of the way, ^ Taunt. 603.
and not return home till dinner-time, and he accordingly did so,
and the creditor called and received the message, but did not
call at dinner-time when the trader was at home, the jury having
found that this was not an absenting to delay a creditor, the
court thought their determination right.

And so also in a case where the jury found a similar verdict jbi^i

on an alleged act of bankruptcy, in the trader's going away from
his house, on occasion of a meeting of creditors, in order to

avoid irritation and harsh language. ||

[The bankrupt's declaration of his fears of being arrested, or Ambrose v.

of his bad circumstances, is not evidence of a bankruptcy, unless Ciendon, Ca.

where it is concomitant with facts, such as removing his goods, temp. Hardw.

bocks, Sj-c. or where the bankrupt himself contests the commis- y^Loy^^^^at'^i

sion.] Pri. cor! Lord*

Kenvon, 5d June 1790. \\Vide post, as' to the new act of bankruptcy by declaration of

insoTvency.il

II Or ot/ier'wise absent himself.\\ \_Absenting himself ., may become ^ Salk. no.

an act of bankruptcy or not, from the intention of the party : if Ji^jp^casV

it be done with a view of defrauding, or even delaying his credi- gStra.sog!

tors, and the absence be but for a single day, it will be an act ||6G.4. c.ie.

of bankruptcy ; and his very absenting himself is sufficient pn'md § 3. rc-enact-
facie evidence of an intent to defraud or delay his creditors : but it 5"^,,^^^ P'^°^*'

must be voluntary, and not by means of an arrest.] isEUz. c. 7.

§1.1 Jac. 1. c. 15. § 2-11 Green, 55.

llThus where the trader admitted creditors repeatedly into his Bigg v. Spoon-

house, cr, 2Esp.65i.

540

BANKRUPT.

Judine V. Da
Cosser, 1 New
R. 234.

Bayly V. Scho-
field, 1 Maule
& S. 338. ; and
see Cheno-
weth V. Hay,
Jbid. 676.

Mills V. Elton,
3 Price R. 142.

Gimmingham
V. Laing,
2 Marsh. R.
236.

Tucker v.
Jones,2 Bing.2.
Palm. 325.
1 Salk. 110.
iJSee Deacon,
ch.3. §2.||

Cro. Eliz. 13.
Godb. 25.

Hopkins V.
Ellis, 1 Salk.
110. p. 6.

house, and saw them, but on their asking for money, went out
under pretence of getting it, and never returned, and it appeared
he went either to the billiard room or the tavern, this was held
an act of bankruptcy, for though the original departure might
be referred to the object of getting the money, the staying away
afterwards was absenting himself with intent to delay creditors.

So where a trader having a counting-house in town, and a
dwelling-house in the country, left the former on Friday^ and
took his books with him to his country-house, which he finally
left on the Tuesday following, the Court of Common Pleas held,
that having left his counting-house without the ajiimtis revcrtendi,
he had committed a complete act of bankruptcy from the time of
his departure.

So where a trader, on being arrested, escaped from the officer,
and took refuge in another man's house, and remained there till
dark, declaring that he did it to avoid other creditors, this was
held an absenting himself within the meaning of the statute.

But where the trader being informed by the attorney of the
petitioning creditors, that he had delivered a warrant to a sheriff's
officer to arrest him, and the attorney advised him to repair to
his office, to avoid a public arrest, which the trader did, and re-
mained there a considerable time, this was held not to be an act
of bankruptcy ; since the bankrupt did not keep out of the way
to avoid the arrest, but only to avoid its being done in a public
manner.

This clause is not necessarily confined to an absenting from the
dwelling-house, or indeed any particular place, but extends to
any evasion of a creditor in any place : therefore leaving the
Royal Exchange (which the trader frequented) at the approach
of a creditor ; breaking an appointment with a creditor to meet
him there ; the proprietor of a theatre retiring behind the scenes,
to avoid a sheriff's officer, giving orders to be denied to him ;
have been held acts of bankruptcy within this clause.

But a mere single breach of an appointment to meet a creditor
is not an act of bankruptcy. ||

II Or begin to keep House. || If a man keeps his house for a long
time, this does not immediately make him a bankrupt; but if he
conceals himself within his house but for a day, or hour, to delay
or defraud his creditors he is a bankrupt.

If there be a process out against a merchant, who thereupon
keeps house to save himself from an arrest, and after goes out to
market, and other places, but hearing of a new process, keeps
house again, and after goes at large ; j;«* cur.^ he is no bankrupt,
because though the keeping house is an act of bankruptcy for
which a commission might have issued at that time, yet by his
going abroad it is purged; and though the statute makes the
keeping house an act of bankruptcy, yet it must be understood
of a keeping in order to conceal himself.

But if A. commits a plain act of bankruptcy, as keeping house,
SjX. though he after goes abroad, and is a great dealer, yet that
will not purge such act of bankruptcy, but he will still remain

a bank-

(A) Who can be adjudged Bankrupt, c^c (Act of Bankruptcy.) 541

a bankrupt : but if the act was not plain, but doubtful, then [Colkett'v.
going abroad, and dealing, S^c. will be an evidence to explain P^e™an.
the intent of the first act ; for if it was not done to defraud c p^"? j ^^*
creditors, and keep out of the way, it will not be an act of bank- unequivocal
ruptcy within the statute. Also, if after a plain act of bank- act of bank-
ruptcy, he pays off, or compounds with all his creditors, he is |""Ptcy cannot
1 "^ ^ "^ ^ be purged or
become a new man. explained by
subsequent circumstances. Ibid.] HMucklow v. May, 1 Taunt. 479. Wood v. Thwaites,
3 Espin. 244. II

[Although the statute of Eliz. mentions " the beginning to Garret v.
" keep house to defraud creditors" as an act of bankruptcy, yet Moule,6Tenn
the construction which it hath obtained is, that there must be ^- 575.

Ill

an actual denial to some one creditor, with intent to defraud or "^*y* ^^

hinder such creditor, in order to constitute the act : that the jrin. 24 G. 3.

debtor's keeping house " with that intent," or giving general B. R. Co.

orders to a servant to deny him to creditors, without an actual Bankrupt

denial to some creditor who hath a debt at that time due, will „ t^^' ^f' „
^ , nc • '7 Vin.Abr. 6.

not be sufficient. pi. 14. put it

now settled that the actual denial to a creditor is only evidence of the intent of the trader in
beginning to keep house, and that the intent may be proved by other evidence ; and that if
the trader has given a general order to deny with such intent, an actual denial need not be
proved. Robertson v. Liddell, 9 East, 487. 14 Ves. 86. Bayley v. Schofield, 1 Maule & S.
338. Lloyd V. Heathcote, 2 Bro. & Bing. 388. Harvey v. Rarasbottom, 1 Barn. & C. 55.
JSjh parte White, 3 Ves. & Bea. 129.||

A denial to a creditor coming at an unseasonable hour, or a Bull. Ni. Pri.
denial incase of sickness, or being engaged in Company or busi- 39. lAtk. 802.
ness, is not an act of bankruptcy.]

11 So also a denial on o. Sunday, or when the trader is at dinner, e^c parte
Preston, 1 Rose, 21. Ex parte HaW, \ hxk. 201. Smith v. Currie, 3 Camp.349. Shaw v.
Thompson, 1 Holt, 159.

But where a trader gave a general order to be denied as not at Lazarus v.
home, and was so denied by his servant to a creditor, although >Vaithman,
the trader was ill and incapable of transacting business, yet a
jury having found that he had committed an act of bankruptcy,
the court i-efused to disturb the verdict ; saying that the creditor
ought to have been told that he was at home, but ill.

It has been held that a denial to a creditor, merely demanding Dudley v.
his debt, and not asking to see the trader, is not evidence of ^'""ghan,
beginning to keep house; but this case has been doubted. Eden'To^L

22. ; and see I Deacon, 5Q.

A denial to a creditor, unless previously directed by the trader, E-r parte
is not an act of bankruptcy, although he afterwards assent to it. j* "y'*^*"'

1 Rose, 50. See 1 Moo. & Malk. 458.

It is no objection to this act of bankruptcy, that at the time of Ex parteBam-
the denial the trader was seen by the creditor. **'r. ' '^ ^^*-

A denial at a friend's house may be an act of bankruptcy. || j Maule & S.

338. 1 Ry. & Moo. 58.

It hath been holden (a), that a denial to a person coming on (a) Barrow v.
behalf of a creditor to demand the debt will not be within the {'Y'^T' '^'''
Statute. But it is certain, that, in practice, a denial to the clerk ^-^^ ^\

54.^ BANKRUPT.

g 1 ®^ ^ holder of a bill or note is considered as such evidence of
V. Mundee keeping house as to make it an act of bankruptcy.
Bull. Ni. Pri. 39. Colkett v. Falch, Co. Bankrupt Laws, 99. \\Ex parte Bamford, 1 5 Ves. 449.1J i

Cumming V. || Closing the doors and slmtters of a banking-house has been

Baily, 6 Bing. j^^j^j ^ « beginning to keep house," although the banker did not
19 Ves. 543. reside at the banking-house. ||

Hooper V. Whether a denial in consequence of a preconcerted agreement

Smith, iBlack. between the debtor and his creditors shall be an act of hank-
ie*, ^p^' " ■ ruptcy, was formerly doubted: but it seems now to be settled,
Allen V.Hart- that if the denial be to any of the creditors privy to such agree-
ley, M. 25 G.3. ment, it is fraudulent, and not a good act of bankruptcy : seciis

J8.R. Co. if to a creditor not acquainted with the agreement.

Bankrupt \ °

Laws, 7. Cawley V. Hopkins. London Sittings after Mich. Term. 1785. cor. Bidler 5. Ibid.

102. IIBaniford v. Baron, 2 Term R. 594. Tappenden v. Burgess, 4 East, 230.||

Ex parte j] And a commission founded on a concerted act of bankruptcy,

Moule^i4\es. qj. taken out at the instance of the bankrupt, will be superseded,
Binme'r^ ^^^ ^ although he has obtained his certificate.
1 Madd. 250.

Shaw V. Wil- A distinction has been taken between a commission founded
Hams, 1 Ryan on a concerted act of bankruptcy, and a commission issued at
&M. 19. ti^g desire of the bankrupt, but founded on a. bona fide act of

bankruptcy.

The former has been held invalid at law, since a concerted
act of bankruptcy is in fact no act of bankruptcy, but the latter
has been held to be valid at law. And in one case the Vice
^xpar^Staff, Chancellor refused to supersede a commission in equity, on the
ground oi its issuing at the request oi the bankrupt. Ihis
decision was, however, reversed on appeal, by the Lord Chan-
cellor.
Ex parte And in a subsequent case it was settled as an invariable rule

Grant, 1 Glyn that no commission, though good at law, should be permitted to

&J. B. C. 17.; stand which was issued at the soHcitation of the bankrupt.

but see 6 G. 4. ^

c. 1 6. § 7. as to the new act of bankruptcy by declaration of insolvency.

Roberts v. It is no objection to an act of bankruptcy, that the bankrupt

Teasdale, was advised to commit it by a friend.

Peake'sCa.27.

Prosser v. Although the petitioning creditor himself may not be privy to

Smith, Holt a concerted denial by the trader, on the petitioning creditor call-

Ni. Pri, Ca. j^g^ yet if it has been arranged by the attorney for the petitioning

^*^* creditor, who is also attorney for the bankrupt, it is fraudulent,

and will not constitute an act of bankruptcy. ||

II Or suffer himself to be atrested for a debt not due. This,

which was constituted an act of bankruptcy by 13 Eliz. c. 7. § 1.

and 1 Jac. 1. c. 15. § 2., is re-enacted by 6 G. 4. c. 16. § 3.1|
Billinf^. 95. H Or yield himself to prison. || Yielding himself to prison, is to I

Good. 25. be intended a voluntary yielding for debt; and if a person

IJThis is re- capable of paying, will, notwithstanding, from fraudulent mo-
c"'i6 ^S 3 11 * ' tives, voluntarily go to prison, it is an act of bankruptcy.
Ex parte B. was arrested for 28/., and though he had money sufficient

Burton, Vin. to pay the debt, yet chose rather to go to prison, in order, as he

declared,

Buck's B. C

249. 431.

(A) Who can be adjudged Bankrupt, ^c. (Act of Bankruptcy.) 5'iS

declared, to force his creditors to come to a composition. The tit. Creditor

Lord Chancellor said, this is an act of bankruptcy within 1 Jac. 1., ^"'^ Bankrupt,

though without such intent, yielding himself to prison was no ^^'

act of bankruptcy, unless he lay there two months ; otherwise

where the party procures himself to be arrested on a sham debt,

for that by the statute of Elizabeth is immediately an act of

bankruptcy.

II Or suffer himself to be outlatsied.\ If a man permit himself Bradfordd's
to be outlawed to the intent or purpose to defraud his creditors case, i Keb.
of a just debt, it is one of the causes of bankruptcy ; so that on a ^^- '^^'^''^■|p
special verdict, if a jury find that he was outlawed, and do not j ^^^ 13.SC
find that it was in fraudem creditorum, this is not a sufficient ||See 6 G. 4. *
finding to make him a bankrupt; because the intent of the c. I6. §3.||
statute was, that it must be such an outlawry as the debtor [Ld.C.B. Co-
permits by keeping out of the way to defraud his creditors. th^Tif the out-
lawry be reversed before the commission issues, or for default of proclamation after the
commission, it shall not be an act of bankruptcy. Com. Dio;. tit. Bankrupt, c. 4. But qu. of
this opinion ? for it rests merely on the great authority of that writer ; and if the outlawry
were originally fraudulent, and intended to defraud or delay creditors, it seeraeth that no
subsequent event would be sufficient to purge the fraud, and prevent the effect of the bank-
rupt acts.]

[An outlawry in Ireland doth not make one a bankrupt ; but ^ j^.^ .
in the county palatine of Durham it doth.] Bankrupt

CC),4. Co. Bank upt Laws, 105
II Or "procure himself to be arrested. This was made an act of G. 4. c. 1 6.
bankruptcy by 1 Jac. 1. c. 15. § 2., and is re-enacted by 6 G. 4. ^ ^'
c. 16. § 3. It is obvious, that under this head, it is unimportant
whether the debt be a just debt or not.

Or procure his goods, money, or chattels to be attached, se^ Jbid.
quest ered, or taken in execution.^

Willingly or fraudulently procuring his goods to be attached or 2 Black. Con*.
sequestered, is declared to be an act of bankruptcy, for it is a l^.^- i^Com.
plain and direct endeavour to disappoint his creditors of their (^^^y~ y\
security. But an attachment out of a court for default or laches Haley, Cowp.
is not an act of bankruptcy ; nor if A. has a rectory impropriate, 427.
and the tythes are sequestered for not repairing the chancel, will
he thereby become a bankrupt. The attachment here meant, Harmanv.
and which the legislature had in view, is that sort of attachment 'il'°,i''n°^ *
by which suits are commenced, as in London and other towns ^, /jj. Co.
where that species of process is used; therefore a fraudulent Bankrupt
judgment and execution sued thereupon, was held not to be pro- |,f^'y.^^^,*
curing goods to be attached within the words of this act. (a) words^f the

late act above supply this defect.^
II" Or make or came to be made, either within the united realm 6 G 4. c. 16.
" or elsewhere, any fraudulent grant or conveyance of any of his 5 ''•
" lands, tenements, goods, or chattels ; or make or cause to be
" made any fraudulent surrender of his copyhold lands or tcne-
" ments; or make or cause to l^ made any fraudulent gift,
" delivery, or transfer of any of his goods or chattels."

The words above, from the new act, are much more extensive
than those of the old statute. The first clause (which was to be
found in the statute of 1 Jac. 1. c. 1 5.) is extended to deeds executed
out of the realm, which had been held not to constitute nn act of

bank-

544 BANKRUPT.

(a) Dick. 533. bankruptcy (a). The second clause as to copyholds, which U
5 Term R. jjg^,^ jg introduced in consequence of Lord Thurlow's decision {h).
Cow'p.598. ^^^^ ^^ copyholds could not be taken in execution for debt,
1 Rose, 150. a surrender of them could not have the effect of delaying

(b) Ex parte creditors, and was therefore not within the statute 1 Jac. 1,
Cockshott, g^ j^^ 'pjjg j^g|. clause, which is entirely new, is intended toi
502. Co. B.L. embrace all such fraudulent deliveries of personal property, in
162. preference of particular creditors, to the delay or defeat of the

creditors in general, as were formerly void as fraudulent prefer-
ences, but which did not constitute acts of bankruptcy, not
falling within the language of the statutes. The facts, therefore,
which formerly constituted a fraudulent preference, will now
probably be held to amount in all cases to an act of bankruptcy
under this clause. It has been found convenient, however, to
class the modern cases on this subject with the old cases as to
fraudulent preference, post, p. 622, 623. to which the reader is
referred. ||
Martin v. {^Making any fraudulent grant or conveyance of his lands and

Pewtress, ^ tenements^ goods, or chattels. A fraudulent grant to come within
t^""' ^A^^'''' the meaning of this statute, ||1 Jac. 1. c. 15. §2.\\ must be by
the latter deed ; therefore a fraudulent sale of goods, not by deed, is no

clause above act of bankruptcy in itself: but being a scheme concerted at the
from the eve of a bankruptcy, to cheat innocent persons, in order to

c(t. 4. c. 16. secure particular creditors, it is such a fraud as shall render the

§ 3., such 1 -S

fraudulent S^le void.

sale, though not by deed, is now an act of bankruptcy, and not merely a fraudulent

preference. Seepos^, p. 622, 623.||

Worsely v. A trader, before he becomes a bankrupt, may prefer one

R ^^4°^' creditor to another, and may pay him his debt; or may make
Wilson V. Day ^^"^ ^ mortgage, with possession delivered; or may assign part
2 Burr. 827. of his effects : but a preference of one creditor to the rest, by
Butcher v. conveying by deed all his effects to him, or so much of his stock
Easto, Dougl, jj^ trade as to disable him from being a trader, is a fraud upon
makes no dif- ^^^ whole bankrupt law, and an act of bankruptcy,
ference whether the assignment be to indemnify a surety, or for a present debt, Hassel v.
Simpson, Hil. 24 G. 3., 1784, B. R. Co. Bankrupt Laws, 106. UNewton v. Chantler,
7 East, 138.||

Kettle V. -^^ assignment of all a trader's effects for the benefit of all

Hammond, the creditors, has been holden an act of bankruptcy (a), unless
Sittings after they all assent to the deed. But in such case {b\ it is not per-

Hil. 7G. 3. milted to those who execute the deed to set it up as an act of
Co. Bankrupt , i -,

Laws, 108. bankruptcy.]

IIEckhardt v. Wilson, 8 Term R. 140. (a) This doctrine rests on the ground that the trader
thereby deprives himself of the means of carrying on trade, and vests his property in persons
of his own choice, instead of trustees chosen by the creditors, and under the controul of the
great seal. It has, however, been repeatedly disapproved. 16 Ves. 148. 17Ves. 198. Mont.
Dig.ll (6) Bamford v. Baron, cited in 1 Term R. 594. jjSee 9 Barn. & C. 310.||

„ JlNor can this be done by those who are privy to it or act

Cawkwell, ""<^er it.

1 Rose, 513. Back v. Gooch, 1 Holt R. 13. 4 Camp. 232. S. C. Ex -parte Shaw, 1 Madd. R
598. ; and see Buck's C. 104. 426.

Tappenden v. But this estoppel does not apply to the assignees, who are
Burgess, merely trustees for the creditors, but only to the petitioning

creditor

(A) Who can be adjudged Bankrupt. (Act of Bankruptcy.) 545

creditor who originates the commission; and therefore, if the 4 East 230. •
latter has never consented to the deed, it is no objection to the and see
assignees* title to recover the bankrupt's estate, that three of ^ ^^^' R.
them were creditors who signed the deed. ^^^*

But if the petitioning creditor has signed the deed, the assignees Tope v. Hock-
cannot set it up as an act of bankruptcy, although the petitioning in, 7 Barn. &
creditor is not one of the assignees. C. 101.

And such a deed is equally an act of bankruptcy, though 4 East, 230.
it contain a proviso, that it shall be void if a certain amount of P|""°." ^"
creditors shall not execute in a given time; or if the trustees i7V^er°9*3
should avoid it; or if a commission of bankruptcy should issue
in a certain time.

But where the deed was intended for execution by three per- ibid.
sons, and was incapable of operation unless executed by all, the
court held, that being executed only by one, it could not be con-
sidered as an act of bankruptcy.

And a deed of assignment without stamp cannot be an act of whitwell v.
bankruptcy, since it is invalid. Dimsdale,

Peake'sCa. 167.

And by §4. of the 6 G. 4. c. 16. it is enacted, that where any ^^•^" ^'^^'
trader shall execute any conveyance or assignment by deed to a ^ '**
trustee of all his estate and effects, for the benefit of all his cre-
xlitors, the execution of such deed shall not be deemed an act of
bankruptcy, unless a commission issue against such trader within
jslx calendar months from the execution thereof; provided that
such deed shall be executed by every such trustee within fifteen
days from the execution thereof by such trader ; and that the
-execution by the trader and trustee be attested by an attorney
4or solicitor; and that notice be given within two months after
the execution thereof by such trader, in case such trader reside
in London, or within forty miles thereof, in the London Gazette,
and also in two London daily newspapers, and in case such
trader does not reside within forty miles of London, then in the
London Gazette, and also in one London daily newspaper, and
one provincial paper published near his residence; and such
notice shall contain the date and execution of such deed, and
the name and abode of such trustee and attorney or solicitor. ||

An assignment of part of a trader's effects may, under certain Jacob v.
circumstances, be good and valid; but an assignment of his Shcplicrd,
effects, with only a colourable exception of a small part (a), will ' '^"f""' ^'^^•
not prevent the deed from being fraudulent; and of course it will vcr^yi/^^, '
be an act of bankruptcy. {a\ Gaynor's

case, Id. 477. Law v. Skinner, 2 Black. R. 996. Compton v. Bedford, 1 Black. R. 362.
. II In general, an assignment of so much of a trader's stock as Black. R. 44*.
would operate to produce insolvency and disable him from Oavilo ™*^ '^*
carrying on trade, is an act of bankruptcy. i uro. &

Bing. 408. 4 Moo. 126. Bemcy v. Vyncr, I Bro. «& Bing. 482. 4 Moo. 335.

And Lord Eldon has intimated, that a mere assignment of i4Ve«.i86.
debts might be an act of bankruptcy ; of course depending upon
what other effects the trader had.||

Vol. I. N a And

'iG BANKRUPT.

Linton V. And an assignment by deed of only part of a trader's effecl s

^^yjl^"' to a fair creditor will, if done in contemplation of a bankruptcj,

Devon V. * ^^ itself the very act.

Watts, Dougl. 86. Round v. Hope Byde, London Sittings after Mich. Term. 1779. Co. Bank-
rupt Laws, 114.

Morgan V. ||Thus, where the trader, being pressed by a particular

Horseman, creditor, conveyed certain estates to that creditor upon trust to
o launt. 241. ggij^ Q^^ pgy himself, and on further trust to pay debts to rela-
tions of the trader, in order to give them a preference, in
contemplation of bankruptcy, the deed was held an act of bank-
ruptcy; for though fair as respected the provision for payment
of the creditor, being executed under pressure for his debt, y^t
as to the relations it was fraudulent and void. :

Pullinf^v. -^^^ though not made in contemplation of bankruptcy, yet a

Tucker, ^colimtarij conveyance by the bankrupt, whether of the whole or

4Barn. &A. of a part of his property, in order to give a preference to pay-
r^fb ticular creditors, to the prejudice of the general creditors, is aii

Phillips, * ^^^ ^f bankruptcy ; for it is a conveyance, 'whereby the creditors
7 Barn. & C. may be defeated or delayed {a) within the meaning of the statute
529. {a) W- 1 Jac. 1. c. 15. $ 2. And although the deed remain in possession
lough these ^p ^.^^ bankrupt, and he carry on his trade for three years sub-
omitted in the sequently, this has been decided to make no difference. ||
6 G. 4. c. 16. §3. ; and the onlywords are, " with intent to defeat or delay his creditors," yet
as a man is supposed to intend the consequences of his own acts, the construction will be the
same.

Hassel v ^ grant or conveyance, fraudulent within the statute 1 3 Eliz.

Simpson, Co. ^^ ^7 Eliz., is an act of bankruptcy.
Bankrupt Laws, 107. ||For the decisions on these statutes, see tit. Fraud (C).]]
See Ex parte II Or malce or cause to be made any fraudulent surrender of any
Cockshott, of his cojyhold lands or tenements. This act of bankruptcy is
3 Bro. 502. entirely new.

1 Co.B,L. 162. Or make or cause to be made any fraudulent gift, delivery, or
transfer of any of his goods or chattels. This act of bankruptcy
is new, as sales or transfers of goods by bankrupts, though
fraudulent, were not before acts of bankruptcy, unless by deed ;
they were however invalid as fraudulent preferences. (See the
cases on this subject, ^os^^, p. 623.)[|

II 2. Of those Acts which are Acts of Bankruptcy without Refer-
ence to the Intent.

6G. 4. c. 16. These acts of bankruptcy are specified in the fifth, sixth, and

j 5. eighth sections of the new act. By § 5 it is enacted, " that if any

The altera- « trader, having been arrested or committed to jnison for debt,

tiii" cl'ause'^ are " ^^' '^^^ any attachment for nonpayment of money y shall, upon sucJi

I)rinted in " or any other arrest or commitment for debt., or nonpayment of

Italics. « money, or upon any detention for debt, lie in prison/or t^wcnty-

" 07ie days, or having been arrested or committed to prison for

" any other cause, shall lie in prison for tvoenty-one days aftei- any

" detainer for debt lodged against him, and not discharged, every

" such trader shall be thereby deemed to have committed ajn

" act of bankruptcy ; or if any such trader, having been arrested i

" cominitted, or detained for debt, shall escape out of prison or

" custodi,

(A) Who can be adjudged Bankrupt. (Act of Bankruptcy.) 547

" custody, every such trader shall be deemed thereby to have
" committed an act of bankruptcy from the time of such arrest,
" commitment^ or detention : provided, that if any such trader
" shall be in prison at the time of the commencement of this
" act, such trader shall not be deemed to have committed an
" act of bankruptcy by lying in prison, until he shall have lain
*' in prison for the period of two months."

§ 6. " And be it enacted, that if any such trader shall file, in § 6.

" the office of the Lord Chancellor's secretary of bankrupts, a
" declaration in writing, signed by such trader, and attested by
*' an attorney or solicitor, that he is insolvent, or unable to
" meet his engagements, the said secretary of bankrupts, or his
" deputy, shall sign a memorandum that such declaration hath
" been filed; which memorandum shall be authority for the
" printer of the London Gazette to insert an advertisement of
" such declaration therein; and every such declaration shall,
" after such advertisement inserted as aforesaid, be an act of
" bankruptcy committed by such trader at the time when such
" declaration was filed ; but no commission shall issue there-
" upon, unless it be sued out within two calendar months next
" after the insertion of such advertisement, and unless such ad-
" vertisement shall have been inserted in the London Gazette
" within eight days after such declaration was filed ; and no
" docket shall be struck upon such act of bankruptcy before
" the expiration of four days next after insertion of such adver-
" tisement, in case such commission is to be executed in London,
" or before the expiration of eight days next after such insertion,
" in case such commission is to be executed in the country ; and
" the gazette containing such advertisement shall be evidence to
" be received of such declaration having been filed."

§ 8. " And be it enacted, that if any such trader, liable by vir- x ^

tue of this act to become banla'upt (fl), shall, after a docket struck (a) Instead o
against him [b\ pay to the person or persons laho struck the any " bank-
same, or any of them, money, or give or deliver to any such '""P^ <J|" bank-
person any satisfaction or security for his debt, or any part r^f jnstead of
thereof, whereby such person may [c) receive more in the « after issuio"
pound in respect of his debts than the other creditors, such any commis-
payment, gift, delivery, satisfaction, or security, shall be an sion." i5Ves.
act of bankruptcy ; and if any commission shall have issued ,^ instead of
upon the docket so struck as aforesaid, the Lord Chancellor may « shall" and
either declare such commission to be valid, and direct the same to the word
be proceeded in, or may order it to be superseded, and a new com- " privately"
mission may issue ; and such commission may be supported either ^ ^ y^^ ^g^

• by proof of such last-mentioned or any other act of bankruptcy ; (d) ScesGI^ii

• and every person so receiving such money, gift, delivery, &Ja.29i.

■ satisfaction, or security as aforesaid, shall forfeit his whole Whether the

• debt {d), and also repay or deliver up such money, gift, satis- jurisdktion to
faction, or security as aforesaid, or the full value thereof, to enforce pay-
such person or persons as the commissioners acting imder such mcnt from the
original commission, or any new commission, shall appoint, for ^J^"r'*'"'"5 .u

tthe benefit of the creditors of such bankrupt."|l forfeiture, sec

2 Glyn & Ja. 261. 265.; and sec post, 549.
N n 2 [Being

548

BANKRUPT.

\Being arrested for debt shall, after stick air est, lie in prison ivb i
months or more, upon that or any other arrest or detention inpriso i
for debt.']

|]The alterations made by the new act respecting this act «f
bankruptcy, are printed above (p. 546.) in itahcs. The clause now
is extended to commitments on attachment for nonpayment of
money ; the time is reduced to twenty-one days ; and tiie clause
extends to persons lying in prison on a detainer for debt after a
commitment for any other cause. This last alteration removes
Bro. & Bing. all doubt whether a trader committed on criminal process, and
lying in prison on detainers for debt lodged against him during
such commitment, commits an act of bankruptcy .1|

The arrest must be lawful, and therefore an arrest by an ex-
ecutor before probate is not within the act.

II An arrest upon a bond before the day of payment, in order

See Ex parte
Bowes, 4 Ves.
R. 168. Rex
V. Page,

308. 7 Price,
616. 3 Moo.
65G.

5 Lev. 58.
||l Atk. 147.|I

Cooke B. L.
97.

to oblige the obligor to find sureties accordinor to the custom of

Cobb V.

Symonds,
5 Barn. & A
516,

1 Burr. 459.

Diincomb v.

Londo7i, seems not to be sufficient.

A penalty due to the crown is a debt within the statute; ard
a person lying in prison the requisite time, being unable to pay
penalties for smuggling, commits an act of bankruptcy. ||

The statute does not make the mere being arrested an act of
bankruptcy. The most substantial trader is liable to be arrested;
but the presumption of insolvency arises from his lying in prison
two months, without being able to get bail ; nor will this pre-
sumption be obviated by a mere formal bail put in for the purpose
of changing from one custody to another. Where bail is really
put in, the bankruptcy only relates to the time of the surrender ;
but when it is only a formal bail, it will have relation to the first
arrest. Therefore, a man arrested in Kenty and brought up to
Walter, 3 Lev. London to be bailed, and immediately turned over to the King's
■-- R ^"*' Bench prison, where he lay two months, was held a bankrupt
479! Rose v. from the first arrest. In a case where a man was arrested on
Green, 1 Burr, the 2d of May, and on the 4th of May was charged in custody
439. Kins V. with that and another action, and lay in prison till the 2d oi Jidy
at the suit of the first plaintiff, when he was discharged out of
custody as to him, and continued in prison at the suit of the
second plaintiff till the 6th oi July ; the court held there was
plainly an act of bankruptcy on the 4th of May, whatever dis-
pute there might be as to its being a bankruptcy on the 2d.

It has in one case been determined, that lying in prison two
lunar months will make the party bankrupt from the time of the
first arrest; and though the commission was taken out before tlie
two months (a) expired, yet he appearing to be bankrupt by rela-
tion to a time before the suhig it out, it was held sufficient.

II But it is decided on the construction of the words of the hie
act (see p. 546.), that the act of bankruptcy by lying in pris m
twenty-one days does not relate to the time of the first arrest.

— so — ■•

M'Adam, 3 Younge & J. 1.

Glassington V. . The day of the arrest is included in the computation of the

Rawlins, time, which is not completed till the expiration of the last c :i^

Leith, 2 Term
R. 141. Cop-
pendale v.
Bridgen,
2 Burr. 818.

Hope V. Gill,
Beawes Lex
Mcr. 489.
11(a) Now
twenty one
days.jl
Moser v,
Newman,
6 Binff. 55G.

(A) Who can be adjudged Bankrupt. (Act of Bankruptcy.) 549

If the arrest is on the 4th July, the act of bankruptcy is com- ^ g^^ ^q_
plete on the S^th.jj Higgins v.

M'Adam, 3 Younge & J. 1.

Being arrested for 100/. <?r more, just debts, shall escape out
of prison,

II The alterations made by the language of the new statute are eG. 4. c. 16.
printed above(p. 546.) in italics. By this statute, any amount of debt § 5.
will be sufficient; whereas, under the 21 Jac. 1. c. 19. §2. it must
have been a debt of 100/. or upwards; the words " committed
" or detained " are introduced ; and it is expressly enacted, that
the act of bankruptcy shall commence " from the time of the
" arrest, commitment, or detention." ||

The act clearly intends such an escape as shews he means to
run away, and thereby to defeat his creditors; it must be an
escape against the will of the sheriff; for a man shall not be
made a criminal where he has not the least criminal intention to
disobey any law.

Therefore, a man who was arrested in Kent, and coming to j^^^^ ^
town in custody of the sheriff's officer, was permitted by him to Green/l Burr.
call at his attorney's house in the city, and from thence imme- 440.
diately carried to the judge's chambers in obedience to a habeas
rorjnts, was held not to have escaped in the sense of this act of
parliament, but to have remained substantially in custody not-
withstanding his being carried into another county.

^^Declaration of insolvency filed at the hanJcmpt office. — See 6 0.4. c. 16.
the sixth section of the statute above (p. 546, 547.). The object § 6.
of this provision, which is entirely new, is to enable the honest Eden, B.L.35.
trader who believes himself insolvent, or who has not the pre-
sent means of paying his debts, to effect an equal distribution
of his property among his creditors. ||

If any bankrupt, after issinng any commission against him, pay 5G.2. c.so.
to the person who sued out the same, or otherwise give and deliver $ 24. IJSee § 8.
to such person, goods or any other satisfaction and security for his " J\^*
debt, whereby such person shall privately have arid receive more in ^^^ m '
the pound, in respect of his debt than the other creditms, such pay-
ment of money shall be an act of bankruptcy.

[jThe alterations made as to this act of bankruptcy will be
found printed in italics, and noticed in the margin above (p.547.).

Under the former act it was held, that giving security to a 3 Ves. 549.
creditor who had struck a docket against the trader, was not ^ De^j-on go?,
within the statute if a commission had not issued ; though Lord
Rosslyn and Lord Eldon agreed that it was within the mischief
intended to be remedied. Accordingly, the new statute substi-
tutes striking the docket for issuing of the commission.

By the new act the Lord Chancellor is empowered either to
declare any such commission issued, or docket struck to be
valid, and direct it to be proceeded in, or to order it to he
superseded ; whereas under the 5 G. 2. c. 30. § 24. it seems that
such commission must necessarily have been superseded.

While such commission remains unsuperseded by the Lord [';' j*^".*'
Chancellor it cannot be disputed in a court of law, on the ^£5" j[t'*io5

Nn 8 ground

550 BANKRUPT.

ground of the money or security given by the trader to the
creditor contrary to the statute.

Filing a petition to take the benefit of the Insolvent Act. —
This act oi bankruptcy is not specified in the bankrupt act,
but it is made one by the late insolvent act 7 G. 4. c. 57. § 13.
Acts of bankruptcy by traders having privilege of 'parliament. — •
fiG. 4. c. 16. By § 9. of the new act if any such trader having privilege of
§ ^- parliament shall commit any of the aforesaid acts of bankruptcy,

a commission may issue against him, and the commissioners and
all persons acting under such commission, may proceed as against
other bankrupts, but such person shall not be arrested or im-{
prisoned during the time of such privilege, except in cases herebyj
made felony. '

^ 30. - And if any creditor of such trader having privilege oG parlia-;
ment, to such amount as is requisite to support a commission,,
shall file an affidavit in any court of record at Westminster^ that
such debt is justly due to him, and that such debtor, as he,
verily believes, is such trader as aforesaid, and sue out of the
same court a summons, or an original bill and summons against
such trader, and serve him with a copy, if such trader shall not
within one calendar month after personal service of such sum-
mons, pay, secure, or compound for such debt to the satis-
faction of such creditor, or enter into a bond in such sum, and
with two sureties, as any of the judges of the court shall ap-
prove of, to pay such sum as shall be recovered in such action,
together with costs, and within one calendar month next after
personal service of such summons, cause an appearance to be
entered to such action in the proper court, every such trader
shall be deemed to have committed an act of bankruptcy from
the time of the service of such summons, and any creditor of
such trader to such amount as aforesaid, may sue out a com-
mission against him, and proceed as against other bankrupts.
$•11. And if any decree or order shall have been pronounced in

any court of equity, or any order made in bankruptcy or lunacy
against any such trader, having privilege, to pay any money, and
such trader shall disobey, the same having been duly served, the
person entitled to receive such sum or interested in enforcing the
payment thereof, may apply to the court to fix a peremptory day
for the payment, which shall accordingly be fixed ; and if such
trader, being personally served with such last-mentioned ordeF
eight days before the day therein appointed for payment of
such money, shall neglect to pay the same, he shall be deemed
to have committed an act of bankruptcy from the time of the
service, and any such creditor may sue out a commission against
him, and proceed as against other bankrupts. ||
Vernon v. In an action brought against the defendants (one of whom had

Hankey, I-on- been a co-assignee with the plaintiff, and removed for the pur-
aftcr Trin^^ pose) to recover the proceeds of a variety of articles, amounting
Term, 27 G. 3. ^^ upwards of 6000/., which had been assigned to them by
iJSee anih, the bankrupt, after several acts of bankruptcy ; Buller J. said,
p. 537. as to there have been three points made in this casej 1st, Whether

{A) Who can he adjudged Bankrupt, (Act of Bankruptcy.) 551

by the leaving her house, Mrs. Tyler intended to delay her these acta of
creditors. 2dly, Whether the leaving of the kingdom without bankruptcy. ||
such intention, but whereby in fact creditors are delayed, be an
act of bankruptcy. 3dly, As to the composition with Mr.
Thackei-y. They are all points of general consequence and im-
portance. The first is a question of fact, and it is for you to
say what you think was Mrs. Tyler'' % intention when she left
her house : she knew that a great number of bills were soon to
become due, and had not made any provision for the payment of
them ; besides, the affidavit of the defendant for the purpose of
himself taking out a commission is very strong, and shews you
what he thought at the time. 1 remember a case about fourteen
years ago, in which Lord Mansfield held such an affidavit con-
clusive-evidence against the defendant, and upon application to
the court, though it was said not to be conclusive, the judges
were all of opinion, that it was prima facie evidence against
such person disputing the bankruptcy he had sworn to.

2dly, As to the going abroad, there cannot be any doubt that
Mrs. Tyhr'% creditors were thereby delayed ; but it is said, that
it is not sufficient unless the going was with an intention to delay
them, and that the bankrupt went to Calais merely to avoid an
impending prosecution. The law upon this subject is estab-
lished by Woodier's case, which happened in 1739, and was not
so strong a case as this, for he had more ground for his appre-
hension, having killed his wife. The point, indeed, has never
been neatly before the court since that time ; but that case has
always been considered, and acted upon as good law. And at
this time, without examining into the expedience of that de-
cision, I should be extremely averse to overrule it. For as you
have often heard it observed from this seat, certainty and uni-
formity of decision are, in matters of this sort, of much more
material consequence than the establishment of a rule one way
or the other. Sdly, It appears from Mr. Ward's evidence, that
Thachenj had sued out a commission which was sealed on the
13th of May, and that on the 19th, in the presence of one of
tlie defendants, he agreed upon Mrs. Tyler's paying him 200/.,
and giving security for the remainder of his debt, that the com-
mission should die away. This is expressly made an act of
bankruptcy by the 5 G. 3. c. 30. § 24. The assignment then
made to the defendants, being subsequent to those acts of bank-
ruptcy, there cannot be any doubt of the plaintiff''s title to re-
cover. The jury found a verdict for the plaintiff.

The legislature having by positive laws declared what acts Cole v. Davics.
shall be considered as criterions of insolvency or fraud whereon J.^'^J^fj"}^;
to ground a commission, none other can be admitted by infer- pri"^4o."piick-^
ence or analogy. Therefore, it is not an act of bankruptcy for a cnham v.
trader secretly to convey his goods out of his house and conceal Blan, Select
them to prevent their being taken in execution; nor to give Cases m Chan
money for notice when a writ shall come mto the sheriff's office ; *^^'^'
nor for a banker to refuse payment, if he appears, and keeps his

shop open.J

N n * llWlierc

552 BANKRUPT.

Philips V. |( Where a trader committed an act of bankruptcy in March

Hopwood, 1825, on wliich a commission might have issued on tlie statutes

10 Barn. & C. ^jjg^^ j^^ force, and on the 1st of May ihose statutes were repealed,

9 Barn. & C. ^^^ ^" ^^^^ ^^ ^^ -Mizj/ the repealing act was repealed, and the

750. 4 Bing. former acts thereby revived, and in July a commission issued ;

312. it was held to be supported by the act of bankruptcy in March.\\

(B) Of the Commission of Bankrupt ; and herein of;
the Creditors who may obtain it, and what they are
to do previous thereto.

(a) For if ^PHE commission of bankrupt, which arms the commissioners

that"^^ ^\'^^ ^^'ith all the power they are to exercise over the bankrupt

one is a bank- ^"^ his estate, is to be granted by the Lord Chancellor, Lord
rupt, yet a Keeper, or Commissioners of the Great Seal, on the application
commission of Creditors only (a) ; and this is a matter not discretionary, but
»"vi.h. t° be granted iejure. (b)

out a petition from the creditors for that purpose, [supported by a proper affidavit of the debt.
5 G. 2. c. 30. But such affidavit need not state the particulars by which the bankrupt becomes
indebted. JEx parte Ward, 1 Atk. 153.] 2 Chan. Ca. 190. (i) As if the words of the act
had been, shall or ought to grant. Vern. 152. 2 Chan. Ca. 191. 1|17 Ves. 512. 1 Rose
Ca. 220.11

6G.4. C.16. (iThe 6 G. 4. c. 16. § 12. enacts, " that the Lord Chancellor

§ 1^' *' shall have power, upon petition made to him in writing against

*' any trader having committed any act of bankruptcy, by any j
*' creditor or creditors of such trader, by commission under the
*' great seal, to appoint such persons as to him shall seem fit,
" who shall, by virtue of this act and of such commission, have
" full power and authority to take such order and direction, '
" with the body of such bankrupt, as herein-after mentioned, as
" also with all his lands, tenements, and hereditaments, both
" within this realm and abroad, as well copy or customary-hold
" as freehold, which he shall have in his own right before he
*' became bankrupt, as also "with all such interest in any such
** lands, tenements and hereditaments as such bankrupt may
*' lawfully depart with all, and with all his money, fees, offices, an-
** nuities, goods, chattels, wares, merchandize, and debts, where-
*' soever they may be found or known, and to make sale thereof
** in manner herein-after mentioned, or otherwise order the
*' same for satisfaction and payment of the creditors of the said
" bankrupt.
6G. 4. c.16. « And be it enacted, that the petitioning creditor shall, be- j
* ^^' *' fore any commission be granted, make an affidavit in writing j

** before a master ordinary or extraordinary in Chancery (which I
*' shall be filed with the proper officer), of the truth of such his '
" or their respective debt or debts, and shall likewise give bond
" to the Lord Chancellor in the penalty of two hundred pounds,
" to be conditioned for proving his or their debt or debts, as
" well before the commissioners as upon any trial at law, in
*' case the due issuing forth of the commission be contested,
" and also for proving the party to have committed an act of

" bankruptcy

(B) Of the Commission of Bankrupt, (Petitioning Creditor. ) 553

" bankruptcy at the time of taking out such commission, and

" to proceed on such commission ; but if such debt or debts

" shall not be really due, or if after such commission taken out it

" be not proved that the party had committed an act of bank-

" ruptcy at the time of the issuing of the commission, and it shall

" also appear that such commission was taken out fraudulently

" or maliciously, the Lord Chancellor shall and may, upon pe-

" tition of the party or parties against whom the commission was

" so taken out (a), examine into the same, and order satisfaction (a) Instead of

" to be made to him or them for the damages by him or them " pivrty

" sustained, and for the better recovery thereof, may assign g"eved."

*' such bond or bonds to the party or parties so petitioning, who

*' may sue for the same in his and their name or names.

" And be it enacted, that no such commission shall be issued eG. 4, c. i«,
" unless the single debt of such creditor, or of two or more per- § ^^•
*' sons being partners petitioning for the same, shall amount to
" one hundred pounds or upwards, or unless the debt of two
" creditors so petitioning shall amount to one hundred and
*' fifty pounds or upwards, or unless the debt of three or more
" creditors so petitioning shall amount to two hundred pounds
" or upwards ; and that every person who has given credit
*' to any trader upon valuable consideration, for any snm pay-
" able at a certain time, which time shall not have arrived when
*' such trader committed an act of bankruptcy, may so petition
*' or join in petitioning as aforesaid, whether he shall have any
** security in writing or otherwise for such sum or not.

Formerly it was necessary that a joint commission should 3 Term R. 123,
include all the ostensible members of a firm, for the commission 4 Ves. 163.
must either be joint or several ; but by the present act it is pro- x ^ 't' *^'j^'
vided, that any creditor or creditors, whose debts are sufficient \ n'
to entitle him to petition for a commission against all the part-
ners of any firm, may petition for a commission against any one
or more of them ; and in every commission against two or more
persons, it shall be lawful for the Lord Chancellor to supersede
such commission as to one or more of such persons ; and the
validity of such commission shall not be thereby affected as to
any other of such persons. ||

[If a creditor has his debtor in execution, he cannot petition Goddard r.
for a commission of bankruptcy ; for the body of the debtor being j "'^f "^y^"
in execution, is a satisfaction of the debt in point of law. There- 87i'Barnaby*8
fore, where a commission had issued on the petition of a ere- case, 2 Stra.
ditor, who had the bankrupt in execution, it was upon that ^53. ||See
account superseded. f/^J^^j^;^

4 Esp. 194. A creditor, whose debt is omitted in an insolvent debtor's schedule, may sue out
a commission on such debt against the insolvent. 2 Glyn & Ja. 68. and see 4 13arn.& A. 256.|1

Nor has the petitioning creditor the ordinary election to sue Ex parte

the bankrupt at law, or come under the commission ; for if lie Ihswcs, i Atk.

were to elect to proceed at law, the commission must be super- ^^'*'
seded, which would affect those creditors who had proved debts
under it, and this incapacity of the petitioning creditor to sue the
bankrupt e^t^nd? to other cases in which common creditors are

55^ BANKRUPT.

not put to their election ; for if a creditor has demands on the
bankrupt of distinct natures or in different rights, he is at liberty
to prove one under the commission, and proceed at law for the
Ex parte recovery of the other. But where a petitioning creditor, having

vVanl, 1 Atk. founded his petition upon a debt arising for two notes of the
bankrupt, arrested the bankrupt upon a third distinct note, Lord
Hardwicke allowed the bankrupt's petition for his discharge, be-
cause the petitioning creditor had determined his election by
taking out the commission.]
Harracrv. ||Ifan action is brought by the assignees against the petition-

Davis, i Moo. jjjg creditor for a debt, and it appears on the state of accounts
2 Camp. 47sif between the petitioning creditor and the bankrupt that the sums
4 Camp. 38. due from the former reduced the debt of the latter below 100/.,

1 Stark. 40. the petitioning creditor is estopped from setting up this as a

defence, for he cannot contend that the commission is invalid.

2 Rose, 188. Xhe petitioning creditor is pledged to the validity of the com-

1 Glyn& J.8G. mission, and must furnish the assignees with necessary evidence,

and has been required to produce on a trial a bill of exchange

on which the commission issued.^
Ex parte G\o^ And if he throws out aspersions on the commission (as by
tgP' ^ ^^^®' declaring the petitioning creditor's debt was invalid), he may be

ordered to pay the costs of enquiries necessary to ascertain

the validity of it. ||
Forrest. 243. [The petitioning creditor must have a legal demand: a debt in

2 Chan. Ca. equity will in no circumstances be a foundation for a commission ;
191, Fieem. therefore if a legal demand is not in its own nature assignable,
Hvliiard ^^"'^^ the assignee, notwithstanding his equitable claim, cannot be a

1 Atk. 147. petitioning creditor.]

2 Ves. 407. Medlicot's case, 2 Stra. 809. 1 P. Wms. 783. Ex parte Lee.

Bnckland v. )| Where the debt is due to several persons jointly, one of them

1 TaunT^477 cannot separately sue out a commission upon it, since he could

Richmond v.' "ot sue separately at law. And so alsojwhere three partners had

Heapy, jointly drawn bills on a trader which he accepted, one of them

1 Stark. ^2. ; having undertaken to provide for them when due, the bills were

varteB\2key ^^^^ "°^ ^^ support a commission sued out by the three, since

1 Glyn & J. ' the undertaking by one partner would have been a defence to

197- an action by the firm against the trader.

1 Atk. 134. But a joint debt diVie from several partners is a legal debt to
Willes, 467. support a separate commission by the ioint creditors against any
S:'r/vt--f'»'epLt„ers.ll

609. Ex parte Dewdney, 1 5 Ves. 499.

w^n"^ ^' [A debt at law, notwithstanding the statute of limitations has

2 slra 746. incurred, will support a commission ; for the statute does not
Contra Mosely, extinguish the debt, but the remedy, and the least hint will
37. revive it.

Quantock v. Indeed, if the debtor himself applies on that ground to super-

E"gla"d, ge^g thg commission, the case may be different; but a debtor of

703^5 Burr the bankrupt's cannot avail himself of that defence to elude the

2628. S. C. ' payment of a just debt to the assignees.

Fowler v. And accordingly Lord Mansfield, at nisi jprius, niled that the

statute

(Q) Of the Commission of Bankrupt. (Petitioning Creditor.) 555

statute of limitations does not prevent a creditor from taking out Brown, Sit-
a commission of bankruptcy : it extends only to the remedies by ''"S* at Wat-
action mentioned in the statute ; it does not extinguish the debt, ^^t"^-^^^^^
or take away any other remedy.] 17*79' ^"°'

II But it seems to be now settled that a debt barred by the sta- ^', 'ig
tute of limitations cannot be the foundation of a commission Dewdney,
nor proved under it. Lord Eldon, in two profound and elaborate ' ^ Ves. 498.
judgments on petitions to prove such debts, expressed his ^'y^^^'f y
opinion that a commission of bankruptcy was nothing more than 493^ 2'llose^*
a substitution of the authority of the Lord Chancellor, enabling 245. As to *
him to work out the payment of those creditors who could, by keeping alive
legal or equitable suit, have compelled payment ; and he ac- f.^^^'* '^^ ,^°""
cordingly refused the proof. |] Limitation of

Actiom, Vol.V.

[If a creditor takes a bill for his debt, which is drawn by the Bickerdike v.
debtor upon a drawee, who had not at that time, nor previous to ^°"'"^"'
the bill becoming due, any effects of the drawer in his hands, ^^"^ ' '
this does not extinguish the original debt, although the creditor
neglects to give notice of its being dishonoured.

It has been determined, that a creditor by notes bought in at '^p^'*'^ ^^^*
\0s. in the pound, was a creditor for the full sum, and might * ™^' ^^*
take out a commission.]

II And so also a creditor on a bill drawn by the bankrupt for Brett v. Le-
100/. before the act of bankruptcy, but not due till afterwards; J^"' is East,
for though it was objected to this debt that the whole 100/. was ?a) 5G. 2.
not due at the date of the act of bankruptcy, but only that sum c. 30. § 22.
minus the rebate of interest, the Court held that the 100/. was a which is, in
debt payable at a time not arrived within the meaning of the ^ ^^^ ^'
statute (a), and was consequently sufficient. § i5.of 6 G.4.

c. 16.

So also where the petitioning creditor (for 112/.) had received Mannv.Shep-

50/. after notice of an act of bankruptcy, as the payment was R^^' V^*^™

void and not retainable, the debt was held sufficient. Buck. Ca. 283.

So also where the petitioning creditor, in ignorance of a prior Doe v. Ander.

act of bankruptcy, had signed a com posit ion -deed with the son, 5 Maule

bankrupt, and received a dividend under it, it was held, tliat as *^~' ^^^'

the deed was invalid, he might sue out a commission of bankrupt, 262.

grounded on his original debt. ..,.,.„ , /« r. Burgess,

Interest cannot be added to the prmcipal or a bill, so as to g Taun^^ ggo/
constitute a sufficient debt, unless payable by the terms ot tlie bill.|| Cameron v.

Smith, 2 Bam. & A. 305. Buck. Ca. 4 1 2.

[A creditor who has a security for his debt may take out a com- Ex parte
mission without delivering it up ; and though it be afterwards Penny, inCanc,
sold(/'), and the debt thereby reduced under 100/., the com- /J^' ^J Jj'/'
mission will nevertheless be good. authority of

(a) Sir George Colebrooke's case, cited by Sir J. Mitford.

A debt on account, though not liquidated, is a foundation for ^1^^^^ ^
a commission of bankruptcy.] Herbert,

2 Ves. 327.; Ilbut see Ex parte Bowes, 4 Vesey, 168. Marston v. Barber, 1 Gow Ca. 17.1

Ijlf the debt arise out of a partnership transaction, the paituers ^vindlianl v.

556

BANKRUPT.

Paterson,

1 Stark. 144.
Ex parte
Nokes,

2 Mont. B. L.

Heylor v. Hall'
Palm. 325.

of a trader cannot be petitioning creditors, until an account is
settled and the partnership determined ; but if the debt does not
arise out of the partnership transactions they may.jl
148.; and see 1 Gow. 17.

[If a tradesman becomes security for another, it creates such a
debt that the creditor may take out a commission.

So a solicitor's bill for fees will support a commission : and
notwithstanding an order obtained that the bill should be taxed
by a master, and all proceedings at law in the mean time stayed ;
if the solicitor whilst the bill is under taxation, sues out a com-
mission of bankrupt against his client, it has in one case been
determined to be no contempt, nor a sufficient cause to supersede
the commission, because the order of reference extends only to the
bringing of actions, and the common and ordinary proceedings.]

II And a debt upon an attorney's bill is sufficient to ground a
commission, though the bill has not been signed and delivered
according to the statute.

But the bankrupt or any creditor may have the bill taxed,
Steele, 16 Ves. provided the bankrupt at the time of his bankruptcy was not con-

Mosely, 27.

JSx parte

Sutton,

1 1 Ves. 1 65.

Ex jmrte

166. Ex parte eluded from doing so.||
Howell, ° "

1 Rose, 512.

Ex parte
Goodwin,

I Atk. 100.

II Qm. Whether
an uncertifi-
cated bank

Ex parte Pi'ideaux, 1 Glyn & Jam. 28.

[The executor of a bankrupt, unless the commission against
his testator has been superseded, cannot take out a commission
for a debt due to the testator ; because the debt vested in his
assignees, and consequently the executor is not entitled to be the
petitioning creditor.]
rupt can petition where his assignees make no claim. 2 Rose, 230.1|
Rogers v. || An executor may sue out a commission on a debt due to hira

James, ^g executor, although his probate at the time of the commission

2 Marsh. 425. ^^^ "°^ ^ sufficient stamp, provided he afterwards obtain one.
The secretary of a company authorized by act of parliament to sue and be sued in the name of
their secretary, cannot sue out a commission of bankrupt on a debt due to the company,
Guthrie v. Fisk, s Barn. & C. 178.

And he may sue it out before he has obtained probate, if he
afterwards obtains one before the adjudication of the commis-
sioners ; for the probate has relation back to the testator's death.
As the husband cannot sue alone for a debt due to the wife
Staples, 7 Vin. ^^^ ^qI^ gQ ^g cannot without her sue out a commission on such
Abr. 67. I 1 .

a debt.

And this whether the debt be due to the wife as executrix or
Winter ^Dav. administratrix, or due to her in her own right.
464. Rumsey v. George, 1 Maule & S. 176.

M'Neilage v. But where a woman is payee of a note or bill of exchange,
HoUoway, payable to her or her order, as such note or bill vests absolutely
\\%^^Ex parte ^" ^^^ husband, by the marriage, he may alone sue out a corn-
Barber, mission of bankrupt upon it ; it being a chattel personal, not a
1 Glyn& Ja. i. mere chose in action.

Sadler v. -A- factor who sells goods of his principal, in his own name,

Leigh, 4 Camp, though not under a del credere commission, is a good petitioning
^9^' creditor against the jiurchaser, until the principal has intervened

and agreed to take the purchaser as his debtor.

Ex'parte

Paddy,

3Madd.241.

Ex parte

(W) Of the Commission of Bankrupt. (Petitioning Creditor.) 557

If a bill is drawn on an infant, and he accept it after he is of Stevens v Jack-
age, the acceptance forms a good petitioning creditor's debt. ®°"» '* Camp.

An infant cannot be a petitioning creditor, because he cannot Ex parte Bar-
give a valid bond to the Lord Chancellor. row, 3 Ves.

554.

A person voluntarily residing and carrying on trade in an M'Connell v.

enemy's country, cannot be a petitioning creditor; for this is an Hector, 3 Bos.

adherence to the king's enemies, and such person cannot sue in ^ P"'!- 113.
this country.

But where a party in ignorance of a declaration of war, went Roberts v.

to the hostile country, and it did not appear that his residence Hardy,

there was voluntary, and he did not trade there, the court sMaule&S.

thought that the residence, under such circumstances, did not ^'^^'
affect his debt.

And a residence in an enemy's country, for the fair purposes Ex parte Bag-

of trade, under a licence, will not invalidate the debt of the lehole, i Rose,

petitioning creditor. ^^i- > ^"^ *^

^ ° 1 Camp. 482.

A debt may be the foundation of a commission, though the Jellis v.

debtor is discharged under the insolvent debtor's act, and has 40""'^ J

included the debt in his schedule; for it is not thereby ex- 256. Qu-Whe-

tinguished. ther such a

commission would be superseded ? and see 2 Glyn & Ja. 68.

A debt payable to the creditor only on a certain contingency, ^rpar/e Page,

cannot be the foundati(Mi of a commission, notwithstanding that iGlyn&J.

a security be given for it which is absolute in its form. ^°^*

If two persons exchange acceptances, and before the bills be- Sarrat v. Aus-

come due one commits an act of bankruptcy, there is not such *■"» * Taunt,

a debt due from him to the other as will support a commission. ^ Deacon 97.

A verdict for damages in an action of special assumpsit does Ex parte
not constitute a good petitioning creditor's debt, before judgment Charles,
is actually signed; and therefore if the act of bankruptcy occur J^g^j jg^*
between the verdict and judgment, such debt will not support a overruling
commission. || Longford V.

Ellis, 1 H. Black. 29. no/a,- and see/>o*<.

[A debt due from a partnership is a legal debt to support a ex parte
separate commission. Crisp, 1 Atk.

134. Co. Bankrupt Laws, 20.

A sum awarded by arbitrators will support a commission not- Ex parte Lin-

withstandintr a bill filed to set aside the award ; for the arbitra- ?°*? 'm a .„ '
, . & , , 1 1 • 1 1 • •! • • 241. II A sum

tion bond is a debt at law, and binds the parties, until it is set jug for taxed

aside for corruption or partiality, Sfc. And if a bill filed were a costs on a
foundation to supersede the bond, a person by filing a bill might judgmen^ as
at once frustrate the effect of the award. 'nomuttTis not

sufficient, at least if the bankrupt has been attached. 1 Mont. & Mac. S62.||
A creditor, before the party entered into trade, may on ac- ^"**^*'®{/'
count of such debt sue out a commission, but a creditor for a .,^^°'ivfe^t
debt contracted after leaving off trade, cannot. But when a y_ ^jng^
commission is sued out, those creditors who have become such 12 Mod. 159.
since the party quitted trade may come in and share the dividend » Ld' R«yni.

with

558

BANKRUPT.

2S7. Cotton
V. Daintry,

with those who were creditors before or during the trading, pro-

vided they are not barred by a prior act of bankruptcy.]
1 Sid. 411. 1 Ventr.29.

II A simple contract debt contracted in trade is not so far ex-
tinguished by a bond given for it by the debtor after quitting
trade, as to prevent a commission being founded on it.

If a trader owing 100/. in trade, become indebted to the same
creditor in 1 00/. more after quitting trade, and then pay 1 00/.
without expressing on what account, a commission cannot be
issued on the old debt ; for it is to be presumed the 1 00/. was
paid on that account. ||

Ex parte
Mackerness,
lP.Wms.260.
Ex parte
James, 19th
June 1719,

Ex parte

Douthat,

4 Baru. & Aid.

67.

Dawe V.

Holdsworth,
Peake'sCa. 64.;
and see 2 Stra.
1042.

Meggott V.
Mills, Ld.
Raym. 287.
See, on the
subject of ap-
propriation of
general payments, tit. Obligation, Vol. V. p. 822., note.

[A creditor by bond payable at a future dsLy^ having sued out a
commission of bankruptcy before the time of payment, Lord
Chancellor ParJcer ordered it to be superseded, because the
money was not then due : but this, though good law at the time
of the decision, has since been altered by the 5 G. 2. c. 30. § 22.
iP.Wms.6io. which extends to all sorts of bonds and securities given on good
Swame v. De- consideration for the payment of money, notwithstanding the
1211. Chilton* preamble speaks only of bonds given for goods in trade.]
V. Whiffen, 3 Wils. 17. The statute extends to goods sold on credit. Cockran v. Love, at
Ni. Pri. cor. Ld. Kenyan, 3d June 1790. UBut see Price v. Nixon, 5 Taunt, 538. Parsloe v.
Dearlove, 4 East, 458 .||

II Where a trader drew a bill for valuable consideration in favour
of^. and afterwards committed aw act of bankruptcy, before the
bill was due, or had been presented for acceptance, A. was held
to have a good petitioning creditor's debt, though it appeared
that, subsequent to the commission issuing, the bill had been paid
by the acceptors ; for the commissioners, and those acting under
them, could not know that the bill would be paid, and could not
be made trespassers by an ex -post facto payment by a third party,
which they could not foresee.

Under the former statutes, a debt contracted before the act of
bankruptcy but payuible afterwards, was not sufficient to support
a commission, unless there was a security in writing. But the
present statute enacts, " that every person who has given credit
*' to any trader upon valuable consideration, for any sum payable
*' at a certain time, which time shall not have arrived when
" such trader committed an act of bankruptcy, may so petition,
*' or join in petitioning as aforesaid, lahether he shall have any
*' security in writing or other-joise, for such sum or 7iot."\\

If the debt of the petitioning creditor appears to have been
contracted subsequent to a secret act of bankruptcy committed
by the trader, no commission ought to be granted upon his
petition. Accordingly, where it appeared that a man was a
bankrupt in January 1724, and the debt of the petitioning
creditor was a note dated in September 1725, it was holden to be
a void commission. But if a debt originally upon a simple con-
tract were extinguished by the creditor's accepting a bond after
a secret act of bankruptcy, it shall not operate as an extinguish-
ment

6G.4.

§15.

C.16.

Toms v. Myt-

ton, 2 Stra.
744.

Ambrose v.

[^L> J uj i/ie LA)7nmtssw7i oj nan/erupt. Q petitioning Creditor. ) 559

ment of the simple contract, so as to deprive the creditor of his Clendon
right to petition.] 2 Stra. 1042.

II Nor if the creditor, subsequent to the act of bankruptcy, Brjant v, Wi-
obtain a judgment at law against the debtor, will such judg- t'^^fs, 2 Maule
ment extinguish the simple contract debt, so as to prevent the ^^' ^^^'
creditor petitioning, jj

[This necessity of the petitioning creditor having a legal debt
due before any act of bankruptcy, seems also to be tacitly ad-
mitted by the reasoning of the judges in several cases, where a
question has arisen. Whether an indorsee of a note given before,
but indorsed after a secret act of bankruptcy, is entitled to be a
petitioning creditor ? Such a creditor is allowed to petition, be- Ex parte Tho-
cause he stands in the place of the indorser, and the debt is not mas, 1 Atk.73.
created by the indorsement, but by the making of the note which ^ ^^'^*' ^•'^•
was before the bankruptcy. The authority of these cases, and Bingley v.
the reasoning on them, has been acknowledged and confirmed Maddison,
by the Court of King's Bench, in Bingley v. Maddison. In that J^- ^- ^^i^^h-
case a note was given by the bankrupt in Janvxiry, and it be- Co*^ B'alikru'pt
came due in June, The act of bankruptcy was in October follow- La^g 24.
ing, and the indorsement in November. The indorsee of the note
was petitioning creditor, and sued out the commission. It was
contended, that at the time of the bankruptcy the petitioning
creditor had no debt, and therefore the commission could not be
supported. The court observed, that this was a case in which
the law of England allowed the assignment of a chose in action.
The debt payable to B. is assigned to D. The consequence is,
that the assignment relates to the original debt, and the assignee
stands in his place. That the indorsee always came in under
the commission, because the indorsement relates to the original W 2 Wils.
debt. That it stood thus upon principle, and the cases are clear, j^^ q^i]" ^
explicit, and positive, and of the highest nature. The case in Wiu-d, Ca.*
the Common Pleas (a) is a solemn opinion of the whole court. temp.Talb.
They therefore held the commission valid.] ^^"'•

II But the bill or note must be endorsed to the petitioning Rose v Row-
creditor previous to the issuing of the commission. *^'"**^'» ^ Camp.

The doctrine that the petitioning creditor's debt must be ex- Donovan v.
isting prior to the act of bankruptcy, gave rise to setting up a Duff; 9 East,
prior debt and act of bankruptcy to defeat a commission. Though 22. Bryant t.
it was not allowed to the bankrupt to resist a commission on this \ ^^^{^g^^ g
ground, yet a debtor to the estate might make this defence. 103. 2 Kosc,

12.; and see Cook's, B.L. 526.

The present statute enacts by section 19. " that no commission ^^'•'*- <^- ^^
" shall be deemed invalid, by reason of any act or acts of bank- ? '^•
" ruptcy prior to the debt or debts of the petitioning creditor or
" creditors, or any of them, provided there be a sufficient act
" of bankruptcy subsequent to such debt or debts."

And by the 18th section it is enacted, that if after adjudica- § ig.
tion the debt of the petitioning creditor shall be found insuffi- in) Sec Mu»-
cient {a) to support the commission, the Lord Chancellor, on the Jj"]," j'*,yfj!^"',;^
application of any other creditor, having proved a debt suHi- ^{^^\^-^

cient

560 BANKRUPT.

The section dent to support the commission, may order the commission to be
applies not proceeded with, provided such debt has been incurred not an-
oF deficiency terior to the debt of the petitioning creditor. .

in amount, but to any original defiect in the nature of the petitioning creditor's debt. 1 Mont.
& Mac. 59. ; and see" 2 Glyn & Ja. 131.

§ 20. And by section 20. the Lord Chancellor is empowered to

direct an auxihary commission to issue for proof of debts under
(a) See Ex 20/., and for the examination of witnesses (a) on oath, or for either
farie '^^^^ of such purposes ; and the commissioners in such commission
Mac. 440. shall possess the same powers to compel the attendance of and
to examine witnesses, and to enforce the production of books,
papers, and writings, as are possessed by the commissioners
under the original commission. ||
Brown V. [Notwithstanding the stat. 5 G. 2. has provided a remedy {a)

sBurr^M'is against maliciously suing out commissions of bankrupt, yet it is
Bonham's case, holden not to take away the common law remedy by an action
8 Rep. 121. for damages, but that the party may proceed at law to obtain
11(a) which is such, redress for the injury he has sustained as a jury think he
5 i3^o£ 6G 4 ^^ entitled to. Where a party elects to abide by the remedy
c. 16. supra.\\ afforded by the statute, he must petition the Lord Chancellor to
Ex parte Gay- have the bond assigned to him. It is, however, in the breast of
ter, 1 Atk. 144. jjjg court, where the bankruptcy is a doubtful case, and the com-
mission superseded, either to direct an enquiry before a master
of the damages sustained by the bankrupt, or a quantum damnifi-
catus upon an issue at law ; and after the damages are settled, the
court may, for the better recovery thereof, order the bond to be
assigned. But where the case is attended with any flagrant
circumstances, the bond will be immediately assigned without
further enquiry.]
^^^" ^' , II The assignment of the bond by the Lord Chancellor is con-

7TermR.304 <^^i^sive of the commission having been fraudulently and mali-
ciously sued out; this fact cannot be questioned in the action on
the bond.
3 East -3^' Neither more nor less than the penalty can be recovered.

Ex parte And therefore if the conduct of the petitioning creditor is not

i4'veT*60o flagrant enough to justify an assignment of the bond, the Lord
Chancellor will order the bond to stand as security for the
damages, to be ascertained in an issue of qv^ntum damnijicatus.
Holmes y. jf g^ action on the case is brought, it is a waiver of the right

1 Swanst R ' ^^ action on the bond, and though the jury give less damages
20. ; and see than the penalty, no action lies on the bond.
1 Rose, 454.

In the action on the case malice must of course be proved ;

the damages are unlimited.

Ex -parte jf ^j^ action is brought, and the circumstances justify it, the

1 Rose'276. Lord Chancellor will, on petition, order the commission and

19 Ves'. 162. proceedings to be brought by the solicitor, into the office of the

secretary of bankrupts, for the purpose of being evidence, and

that the plaintiff may inspect and take copies, Sjc.

6G.4. C.I6. gy g Q 4.^ J. 26. § 14. it is enacted, that the petitioning

' creditor or creditors, shall at his or their own costs, sue forth

and

nnd prosecute the commission, until the choice of assignees ;

and the commissionei's shall, at the meeting for such choice, [(a)Thi8direc-

ascertain such costs (a), and by writing under their hands shall ^'°"' ^^^} ^^®
T , ,1 • / u u u ii ^ • i\ • commissioners

direct the assignees (who are hereby thereto requu'ed) to reim- shall settle the

burse such petitioning creditor or creditors, such costs out of bill, does not
the first monies that shall be got in under the said commission, prevent the
{b) " And all bills of fees or disbursements of any solicitor or *^"^"cellor,
" attorney employed under any commission, for business done from referring
*' after the choice of assignees, shall be settled by the commis- it to a master
" sioners, except that so much of such bills as contain any i" chancery to
" charge respecting any action at law, or suit in equity, shall the h'ari"'^°"
" be settled by the proper officer of the court in which such there should
" business shall have been transacted, and the same so settled appear to be
" shall be paid by the assignees to such solicitor or attorney ; feasonable ob-
" provided that any creditor who shall have proved to the aS'nsTthe
" amount of 20/. or upwards, if he be dissatisfied with such allowances
*' settlement by the commissioners, may have any such costs and made by the
" bills settled by a master in chancery, who shall receive for such commissioners.
** settlement and the certificate thereof 205. and no more."|| Vin^nt^%4th

March 1786. Ex parte Clarke and Coghlan, 29th May 1789.; 22d March 1790.; 26th
November 1791. Co. Bankrupt Laws, 10.] (Jb) This clause is in lieu of the 46th sect, of
5 G. 2. C. 50.

(C) Of the Commissioners, their Duty ; and herein
of the Power they may exercise over the Bankrupt
and others, in discovering his Estate.

il"D Y 6G.^. c. 16. § 21. (re-enacting the 5 G. 2. c. SO. § 43.,) Their commis-.

the commissioners " before they proceed in the execution s'ona"" power

" of any commission of bankrupt to them directed, shall each the several

" of them take the following oath. / A. B. do swear, that I acts of parlia-

" mil faithfully, impartially, and honestly, according to the best >nent which

" of my skill and knowledge, execute the several poivers and tmsts ""S"* ^° ^^
,. '^ , . ° . . . . . /' 1 I . pursued, else

" reposed in me as a commissioner in a commission of oaninupt they are sub-

*' against , and that isoithout favour or affection, prejudice oi' ject to the ac-

*' malice. Which oath any two or more of the said commis- tion of the

" sioners are empowered and required to administer to each f?''*'"'^ ^u'^|^||'

*' in the same commission named and authorized, of which they yther remedy.

" are to enter a memorial, signed by them respectively, among 4 Inst. S77.

" their other proceedings." ||

[If sufficient evidence is given to satisfy the commissioners Ex parte

(for they are not bound to believe all that is sworn,) that the f JJ^'j^^^J!; Ex

party is a bankrupt, they declare him a bankrupt generally, to ^,„r/ff Groomc,

prevent disputes about the time when he became such.] id. J 19. De

Colls V. Ward, Ca. temp. Talb. 843.

||The 6 G. 4. c. 16. § 33. enacts, "that after adjudication it shall 6G.4. c. I6.

" be lawful for the commissioners, by writing under their hands, § ^5^ ^^ ^^^^^

" to summon before them any person known or suspected to pcr°rns'havc

" have any of the estate of the bankrupt in his possession, or been examined

" who is supposed to be indebted to the bankrupt, or any person bv the com-

" whom the commissioners believe capable of giving information '"uf|'"JJJj.'jjJ[.*''

Vol. I. O o " concerning *

6G2

BANKRUPT.

covery of the
same matters
may be filed
against them
in Chancery.
2 Chan. Ca. 75.
Must disclose
and answer
directly to the
question put
to him. Vent.
324.

6G. 4. c. 16.
§54.

[The commis-
sioners had
no authority
under the
former act,
to commit a
person sus-
pected to de-
tain effects of
the bankrupt
for not attend-
ing to be ex-
amined, upon
their first
summons.
Dyer v. Mis-
sing, 2 Black.
R. 1035.]
IJBut see
sEast, 319. ;
and § 33. of
the present
statute ex-
pressly gives
such a power.
See page 561. II

§35.

" concerning the person, trade, dealings, or estate of such ban
" rupt, or concerning any act or acts of bankruptcy committe
" by him, or any information material to the full disclosure df
** the dealings of the bankrupt, and it shall be lawful for th
" said commissioners to require of such person to produce an
** books, papers, deeds, writings, or other documents in h
" custody or power, which may appear to the commissioners ner
" cessary to the verification of the depositions of such persons,
" or to the full disclosure of any of the matters which the
" commissioners are authorized to enquire into ; and if such
" person so summoned as aforesaid shall not come before the
" commissioners at the time appointed, having no lawful im-
" pediment, (made known to the said commissioners at the time
" of their meeting, and allowed by them) it shall be lawful for
" the said commissioners, by warrant under their hands and
" seals, to authorize and direct the person or persons therein
*' named for that purpose to apprehend and arrest such person,
" and bring him before them to be examined as aforesaid.

" § 34. And be it enacted, that upon the appearance of
" any person so summoned or brought before the commissioners
" as aforesaid, or if any person be present at any meeting of
" the commissioners, it shall be lawful for them to examine
" every such person upon oath, either by word of mouth oi
" by interrogatories in writing, concerning the person, trade,
** dealings, or estate of such bankrupt, or concerning any act or
" acts of bankruptcy by such bankrupt committed, and to re-
" duce into writing the answers of every such person, and sucli
" answers so reduced into writing the party examined is hereb}-
" required to sign and subscribe, and if any such person shall
" refuse to be sworn, or shall refuse to answer any lawful ques-
" tion put to him by the said commissioners touching any of the
" matters aforesaid, or shall not fully answer to the satisfaction
" of the said commissionerss any such lawful question, or shall
*' refuse to sign and subscribe his examination so reduced into
" writing as aforesaid (not having any lawful objection allowed
" by the said commissioners), or shall not produce any books,
" papers, deeds, and writings, and other documents in his ens-
" tody or power relating to any of the matters aforesaid, which
" such person was required by the commissioners to produce,
" and to the production of which he shall not state any objectiois
" allowed by the said commissioners, it shall be lawful for them,
" by warrant under their hands and seals, to commit him to
" such prison as they shall think fit, there to remain without bail
*♦ until he shall .submit himself to them to be sworn, and full
*' answers make to their satisfaction to all such lawful questions af.
" shall be put to him, and sign and subscribe such examination,
*' and produce such books, papers, deeds, writings, and other
" documents as aforesaid, in his custody or power, to the produc--
" tion of which no such objection as aforesaid has been allowedl

" § 35. And be it further enacted, that where an?/ persot
" known or stcspeded to have any of the estate of the bankrupt in ht^-

" posscssioii.

(^C) Duty and Po'wer of Commissioners, (Examining Bank'.) 5Q^

<• possession, or ivko is stcpposed to be indebted to the bankrupt (a), (a) The words
" shall be summoned to attend before the said commissioners in italics are
" every such person shall have every such costs and charges as '"stead of the
" the said commissioners in their discretion shall think fit, nesses" in "
" and everi/ witness summoned to attend before the commis- sG. 4. c. 8i.
" sioners shall have his necessary expenses tendered to him in § ^«
" like manner as is now by law required upon service of a sub-
" poena to a witness in an action at law."

And by § 120. it is enacted, " that ani/ person wilfully conceal- 6 G. 4.
" ing any real or personal estate of the bankrupt, and who shall § i^o. c. 16.
" not, within forty-two days after the issuing of the commission
" discover such estate to one or more of the commissioners or
" assignees, shall forfeit the sum of 100/. and double the value of
" the estate so concealed ; and any person who shall, after the
" time allowed to the bankrupt to surrender, voluntarily dis-
" cover to one or more of the commissioners or assignees any
" part of such bankrupt's estate not before come to the know-
" ledge of the assignees, shall be allowed 5l. per cent, thereon,
" and such further reward as the major part in value of the
" creditors present at a meeting called for that purpose shall think
" fit to be paid out of the estate recovered on such discovery.

And by § 36. it is enacted, " that it shall be lawful for the § 36.

" commissioners by writing under their hands to summon any

" bankrupt before them, whether such bankrupt shall have ob-

" tained his certificate or not, and in case he shall not come at

" the time by them appointed (having no lawful impediment

" made known to them at such time and allowed by them), it

" shall be lawful for the said commissioners, by warrant under

" their hands and seals, to authorize and direct any person or

*' persons they shall think fit to apprehend and arrest such bank-

" rupt and bring him before them ; and upon the appearance of

" such bankrupt, or if such bankrupt be present at any meeting

'' of the said commissioners, it shall be lawful for them to ex-

" amine such bankrupt upon oath, either by word of mouth or

" on interrogatories in writing, touching all matters relating

" to his trade, dealings, or estate, or which may tend to dis-

" close any secret grant, conveyance, or concealment of his lands,

" tenements, goods, money, or debts, and to reduce his answers

" into writing, which examination so reduced into writing the

" said bankrupt shall sign and subscribe, and if such bankrupt

" shall refuse to be sworn, or shall refuse to answer any ques^

" tion put to him by the said commissioners touching any of the

" matters aforesaid, or shall not fully answer to the satisfaction

" of the said commissioners any such questions, or shall refuse

" to sign and subscribe his examination so reduced into writing

" as aforesaid (riot having any lawful objection allowed by the said

" commissioners), it shall be lawful for the said commissioners,

" by warrant under their hands and seals, to commit him to such

" prison as they shall think fit, there to remain without bail

" until he shall submit himself to the said commissioners to be

" sworn, and full answers make to their satisfaction to such

Oo 2 *' questions

564

BANKRUPT.

" questions as shall be put to him, and sign and subscribe such
" examination.'*

By § 37. the commissioners are authorized to summon and
examine the bankrupt's wife for the discovery of the estate, goods,
and chattels of the bankrupt, and she shall incur the same penalties
as other witnesses for not coming or refusing to be sworn, Src.{a)
as to the act of bankruptcy, for she cannot be a witness for or against her husband, and the
examination under the statute is confined to property. Ex parte James, 1 P. Wms. 611.

6G. 4. c. 16.

37.
(a) But the
wife cannot
be examined

$ 39.
In place of
§ 17,18. of
5 G. 2. c. 50.
The proviso
commencing
at the * is new,

$40.
This section is

$ 119.
This clause
re-enacts and
extends the

" § S9. And be it further enacted, that if any person be com-
" mitted by the commissioners for refusing to answer or for not
" fully answering any question put to him by the said commis-
" sioners, they shall in their warrant of commitment specify
" every such question : provided that if any person committed by
*' the commissioners shall bring any habeas corpus in order to
" be discharged from such commitment, and there shall appear,
*' on the return of such habeas corpus, any such insufficiency in
" the form of the warrant whereby such person was committed
" by reason whereof he might be discharged, it shall be lawful
" for the court or judge before whom such party shall be
" brought by habeas corpus, and such court or judge is hereby
*' required to commit such person to the same prison, there to
*' remain until he shall conform, unless it shall be shewn to such
" court or judge by the party committed that he has fully
" answered all lawful questions put to him by the commis-
** sioners ; or if such person was committed for refusing to be
*' sworn or for not signing his examination, unless it shall ap-
" pear to such court or judge that he had a sufficient reason for
*' the same. * Provided also, that such court or judge, shall if
" required thereto by the party committed, in case the whole
*' of the examination of the party so committed shall not have
" been stated in the warrant of commitment, inspect and consider
" the isohole of the examination of such party whereof any such
" question was a part, and if it shall appear from the whole
" examination that the answer or answers of the party com-
" mitted is or are satisfactory, such court or judge shall or may
" order the party so committed to be discharged.

" § 40. And be it enacted, that in every action in respect of
" any such committment brought by any bankrupt or other
" person committed, the court or judge before which or whom
*' such action is tried shall, if thereto required by the defendant
*' or defendants in such action (in case the whole of theexamin-
*' ation of the party so committed shall not have been stated
" in the warrant of commitment), inspect and consider the whole
" of such examination, and if upon such inspection and con-
" sideration it shall appear to such court or judge that the
*' party was lawfully committed, the defendant or defendants in
*' such action shall have the same benefit therefrom as if the
" whole of such examination had been therein stated."

By § 119. it is enacted, " that whenever any bankrupt is in
** prison or in custody under any process, attachment, execution,
" commitmefif, or sentence, the commissioners may, by warrant

'• under

" under their hands directed to the person in whose custody 5G. 2. cso.

" such bankrupt is confined, cause such bankrupt to be brought ^"^ 4t)G.3.

*' before them at any meeting either public or private, and if Thefon 'ra t

" any such bankrupt is desirous to surrender, he shall be so did not extend

*' brought up and the expense thereof shall be paid out of his to custody in

*' estate, and such person shall be indemnified by the warrant execution, this

" of the commissioners for bringing up such bankrupt: pro- bytheTatteT

" vided that the assignees may appoint any persons to attend The words of

" such bankrupt from time to time, and to produce to him his the present

" books, papers, and writings, in order to prepare an abstract ^^^^^^^ ^^

** of his accounts, and a statement to shew the particulars of his to the custody

*' estate and effects previous to his final examination and dis- and also as to

" covery thereof, a copy of which abstract and statement the the time. See

" said bankrupt shall deliver to them ten days at least before ^P^^ce v.
-, , . , ^ ^. ^. „ •' Jones, 5 Barn.

" his last exammation. & ^ \q^^

decided on the 49 G. 3. c. 1 2 1 . § 1 5.

By § 27. " it is lawful for any person appointed by the com- 6 G. 4. c. ig.
" missioners, by their warrant under their hands and seals, to § ^^'
*' break open any house, chamber, shop, warehouse, door, trunk,
*' or chest of any bankrupt, where such bankrupt or any of his
** property shall be reputed to be, and seize upon the body
*' or property of such bankrupt ; and if the bankrupt be in
" prison or in custody, it shall be lawful for the person so
** appointed as aforesaid to seize any property (his necessary
*' wearing apparel only excepted) in the custody or possession
** of such bankrupt or of any other person, in any prison or
" place where such bankrupt is in custody."

By § 28. a similar power is given of seizing property in Ire- § 28.
land.

By § 29. Justices of the peace in England and Ireland are § 29.
authorized and directed to grant search-warrants, where the
property of the bankrupt is suspected to be concealed in any
house or premises or place not belonging to the bankrupt.

By § 30. a mode of seizing the bankrupt's property in Scot- § so.

land is provided similar to that given by §§ 27. and 28., but it does [Where goods
. * . m • ii« hiicl been sent

not extend to searching or seizing in any premises not belongmg ^y ^^e bank-
to the bankrupt. mpt on board
ii ship to be conveyed to his correspondents abroad, it was holden, that the commissioners
could not seize and take them away without paying the freight. Molloy, 255. Where the
party refuses obedience to the commissioners' warrant, it seems that the chancellor will
attach him as for a contempt. Ex parte Titner, 1 Atk. 1.5G. Vide Molloy, 253. contr.] ||It
is now settled to be a contempt. Ex parte Page, 17 Ves. 59.; and if a party indemnify against
the consequences, he is involved in the contempt. Ex parte D'won, 8 Ves. 104.||

[The commissioners, if they have reason to apprehend that Ex parte Lin-
the bankrupt is making away with, and concealing his effects, or K""J> 'Atk.
preparing to depart the kingdom to avoid surrendering, may ^'*.^* Jg q ^^
summon him to appear before them to examine him imme- c. le*.; anil^
diately ; and, upon his refusal to attend to the summons, may sei'.jl
certify to a judge under this clause.

The commissioners may examine the bankrupt to nil matters Ex parte
that are requisite to a full disclosure of his estate and effects, and Mcymot,
the manner he has disposed of them, notwithstanding such ex- ^ ^^^' ^^^

O o S amination

566 BANKRUPT.

Es parte aminatioii should subject him to penalties, as in the case of

Burr. 1793. .smuggling or gambling; for that is no reason why the com-,
Co. Bankrupt mission should not proceed: and if the bankrupt has any ob-
H'icle iiifr'u.W jection to the question, he must demur to the interrogatories,]

and the Lord Chancellor will judge of the question upon al

petition; or if the bankrupt refuse to answer any question, and;

the commissioners commit him, and the delinquent bring an!

habeas corpus, the question must be set forth particularly in the

return to the habeas corpus, that the judges may judge whether;

it was a lawful question or not.
1 Salk. 348. As the commissioners in the commitment of the bankrupt and

Miller v, others have but a special authority, they must be careful not to

bcare, 2 Black, exceed it ; for an action will lie against them, in case of an illegal

commitment.]
Dosvvell V. II But it has been solemnly decided, that the commissioners

Impey, 1 Barn, are not liable to an action of trespass and false imprisonment for
AVh^^tT committing a party who does not answer to their satisfaction
witness was when examined touching the bankrupt's estate ; notwithstanding,
required by the party has been discharged on habeas corpus on the ground of
the Commis- i\iq court thinking the answers satisfactory; for the commis-
entries in a^^^ sioners, in so committing, are acting within their authority, the
ledger, and statute authorizing them to commit the bankrupt or any other
was committed person who shall not fully answer to the satisfaction of the com-
for refusing, viissioners, all lawful questions, t^r. Quiere. Whether an action
tie commit- ^^ ^^^ ^^^^ ^jj^ y -^^ j^ circumstances?
jnent was heiu

illegal, for this was not refusing to answer a question, and was not within the powers of the
act. Isaac v. Impcy, 10 Barn. & C. 442. See 1 Mont, & Mac. 271.

Crowley v. Where the party is in custody upon previous process, the

Impey,2Stark. issuing of the warrant of the commissioners does not amount to an
^ ' imprisonment, unless the party is in consequence of it confined

within narrower limits, as within the prison instead of the rules.
6 G. 4. c. 16. By sections 41 and 42 of the present statute, the commissioner

§41,42,45,44. is entitled to have one month's notice of the action, setting forth
the cause of action. By section 43. he is empowered to tender
amends and plead it. By section 44. actions against the com-
missioners must be commenced within three months after the fact
committed ; and the commissioners may plead the general issue,
and give the special matter in evidence ; and are entitled to double
costs on nonsuit, or verdict for defendant, or discontinuance
after appearance, or judgment for defendant on demurrer. 1|
g [The commitment must pursue the words of the act of

parliament; and in this the superior courts have been very
Bracy'scase, strict in their construction. A commitment of a bankrupt by
I Salk. 548.; commissioners to prison, there to remain till he conformed to their
9 Barrf^& C fiuthority, was holden ill, because the statute empowers them to
234.11 commit in that case, till he submit himself to be by them ex-

amined. And the court said, the word conform, instead of the
word submit, was well enough, because it was of the same sense ;
but as the commissioners had other authorities besides that of
examining, and it did not appear but it might require a sub-
mission to them in other respects, and for that, all powers given

in restraint of liberty must be strictly pursued, the commitment
was bad.

So where a bankrupt was committed for refusing to be ex- HoUingshed'g
amined, and the conclusion of the warrant was or othei'wise <=^se, i S^k.
discharged by due course qflmxt^ it was holden bad. Ra^'m^ssi'

S. C. *

Again, a warrant reciting that the bankrupt had been examined Rex v.Nathan,
before the commissioners, upon his oath, upon which examination ^ ^^^^ ^®°*
he had notoriously prevaricated, and therefore that they had
committed him without bail or mainprize, until he should make
a full and true disclosure of his estate and effects, or he othenioise
delivered by due course of laWy was holden ill ; because the com-
mitment did not pursue the words of the statute.

And upon the same principle, a commitment till the bankrupt Miller's case,
shall full answer make to all such questions as shall be put to him j.^^ ^^^'
as aforesaid was considered as clearly bad.]

11 But where the bankrupt refused to be sworn, a commitment, Nobesv.
until such time as he should submit to take the oath prescribed ^r?""'^"n-
by law for that purpose, and full answer make, to the satisfaction 255. Vidc Ex
of the commissioners, to the questions which might be put to parte Leake,
him by virtue of the commission, was held good; for by such 9 Barn. & C.
questions must be intended lawful questions. ""'*•

Where the bankrupt was committed for not giving information Ex jjarte Cas-
to the assignees as to certain debtors of his estate, the commit- sidy, 2 Rose,
ment was held bad ; for he could not be committed for not satis-
factorily answering the assignees, but only the commissioners.

With respect to the satisfactoriness of the bankrupt's answers, Pedley^ case,
it was formerly held, that if the bankrupt (and the same reason ^^^'^ Exnarle
would apply to any other party examined), swore fully and Nowlan,
roundly to such an answer as, if true, would be satisfactory, the g Term R. lis.
commissioners must take it to be satisfactory, whatever reason 2 Rose, 401.
they might see to disbelieve it; but this doctrine is now exploded, g ygg g^gg. '
and it is settled, that if the commissioners disbelieve the bank- Ex parte
rupt's story, they are bound to commit him as not answering Oliver, 1 Rose,
satisfactorily. And if the answer is incredible to any other juris- ^^7. 2 yes.&
diction, before which the bankrupt may be brought on habeas ^^^ 1 Deacon
cotpzis, the bankrupt will be remanded. The answer must be 525.
full in this sense — that it must be reasonably satisfactory to the
mind that is to decide. || ;, j^j^j ^^g

[It has been holden, that a person examined before commis- Conib.39i.*
sioners of bankrupt is not bound to answer any thing which tends ||see 1 Mont,
to accuse himself; he is not to answer any thing criminal.] & Mac. 212.JI

11 But he may be compelled to disclose the infirmity of his title Ex parte Hef
to an estate. S ^^

And a bankrupt is bound to disclose the particulars and dispo- prntt's case,
sition of his property, although he may thereby prove an act of iGlyn&Jara.
bankruptcy against himself. Thus, he may be compelled to state ^^•
whether a deed executed by him was voluntary or not.

And though he may refuse to answer a question, whether he Ex parte
has done an act clearly criminal, yet if he refuse to discover any ^"^J**^"*' ^ '
particulars of his estate, he is liable to the consequences of

O o 4- answering

5(i8

BANKRUin'.

Smith V. Bead-
well, 1 Camp.
30.

Stockfleth V.
De Tiistet,
4 Camp. 10.
Sed vide
7 Barn. & C.
625.

Davie V. Mit-
ford, 4 Barn.
& Aid. 556. ;
and see God-
dard's ca.
Buck, 45.

Ex parte
Vorjcl, 2 Barn.
«& Aid. 219,
See Ej: jmrte
Baxter, 7 Barn.
& C. 673.

Scd qiKsre?
and vide Ex
parte Bland,
1 Atk. 204.
Ex parte
Parsons, 1 Atk,
204.

answering unsatisfactorily, although the information sought may
shew that he has committed a criminal act. i

If a party, on his examination, unguardedly answer (questions!
which render him liable to penalties, his examination is evidence!
against him in a court of justice.

And this, although the authority of the commissioners has
been abused by an examination on matters unconnected with
the bankrupts' estate, for the purpose of procuring evidence for
an action in which the bankrupt has no interest.

It seems that the bankrupt is bound to render to the com-
missioners, if required, an account in writing of his estate and
effects.

Where he promised to produce a balance-sheet, and repre-
sented an account in writing to be necessary to make the dis-
covery of his estate and effects, and adjournments from time to
time took place, in order to enable him to make out one, and on
the last adjournment he gave no satisfactory reason for not pro-
ducing it; it was held, that the commissioners were justified
in committing him.

The commissioners are authorized to examine a witness con-
cerning the person, trade, dealings, estate, and effects of the
bankrupt; and, incidentally to this power, they may examine
him respecting other individuals, through whom they may be
likely to obtain information on those points : therefore, a ques-
tion, where the witness last saw the bankrupt's wife, was held
legal and material ; and the commissioners were held justified in
committing the witness for unsatisfactorily answering it.||

[The Lord Chancellor has power to limit the commissioners of
bankrupts, to make particular enquiries.

Thus, the Lord Chancellor, upon a petition, limited the
examination of a mother to her son's trading, but would not
restrain the commissioners from asking any question that might
be relevant thereto.]

II But in a recent case the Vice Chancellor refused, on pe-
tition, to restrain the commissioners from putting questions
respecting a gaming debt, for which an action had been brought
against the petitioner by the assignees ; since it must be presumed
that the commissioners would do their duty, and that the party
would be protected from answering questions subjecting him to
penalties. II

[The depositions taken before commissioners of bankrupts are
not of a public nature, but taken by commissioners to defend
themselves ; therefore the court will not order a copy of them,
persons summoned before the commissioners a copy of the interrogatories, or their former
depositions. Ex parte Bland, 1 Atk. 205. Bowden v. Dellow, Id. 289. HBuck, 290.||

II Where the bankrupt is committed for not fully answering to
the satisfaction of the commissioners, the courts have been strict
in requiring all the questions and answers put to him, applicable
to the subject of commitment, to be stated at length on thewarrant,

Ex parte
Burlton,
1 Glyn & J.
30. ; and see
Buck. 337.

Bracy's case,
1 Ld.Raym.
153. The court
has refused

Coomb's ca.
2 Rose, 396.
Brown's case,
Jd. 400. ; but
see ^ 39. of

in order that the court, before which the bankrupt may be the new act,
brought on habeas corpus, may be enabled to judge whether the *"-^'""*
commissioners have rightly understood the effect of such questions
and answers.

And if the commissioners commit the bankrupt on the evi- Crowley's
dence of third parties (a), such evidence must be stated on the case, 2 Svvanst.
vTarrant in hac verba. And if the bankrupt is recommitted after '/ ^"L^^^^"
re-examination, the re-examination must be stated in a supple- missioners can
mental warrant. receive such

evidence in deciding whether the answers are satisfactory, is doubtful.

A single question, followed by a direct answer, with no Walker's case,
further examination on the subject of it, cannot be the ground iGlyn&J.
of a valid commitment, as the judge would have no means of ^V*' ^"df^^
deciding whether or not the answer was satisfactory. 467.

If the bankrupt refuse to be sworn [h) or give any account of ExpartcVagey
Iiis property, this is a refusal to answer all questions, and a warrant 1 Bar»- & Aid.
of commitment is good in such case, though it state no specific ^^?" | v '
question put to the bankrupt. sworn is now a

specific ground of committal. §34.

But by the present statute (§39.) ante 56^, an important eO. 4. c. 16.
alteration is made (c), and it is provided, that the court before $ 39.

which the bankrupt is brought may, if required, inspect and con- ^f^ ^"' "^.^
-. X ' J. ^ tncr since this

sider the whole examination of the party, although the whole is provision the
not stated in the warrant of commitment. warrant will

be bad for not stating all the questions and answers relative to the subject of commitment.
See 9 Barn. & C. 236.

If, on the return to the habeas corpus, there appears any Insuf- 6 G. 4. c. i6.
ficiency in point of mere form in the warrant, the court cannot, \ff[^ , "'•
on that ground alone, discharge the bankrupt, but are bound to 2M219. *
recommit.

If the bankrupt committed is desirous to conform, he must 1 Term R es 1.
send word to the commissioners; and they will be directed by 2Bro.C.C.48.
the court to appoint a meeting for a further examination ; and in t~r^^' ^p
some cases the Court of King's Bench will grant a mandamus to gio. * ^*
the commissioners.

But in a late case, the court refused a mandamus where the Ex parte
object of the application seemed to be to avoid the expense of a B^jxter,
habeas cojpns, saying they had no authority to throw on the 344"*^°'
estate the expense of bringing up the party. ||

[A question was raised, whether a bankrupt, under examin- ExDaricDkk^
ation, was protected from arrests at the time, and eutido ct rede- 2Bluck. lua.
tmdo ? The fact was, that the bankrupt was arrested upon an
extent. Lord Hardvoicke held, that the king was not bound by
the bankrupt acts; therefore, that it was merely a question at
common law : and certainly, at common law, the commissioners
have no audiority ; and that their autliority is not judicial, but
ministerial.

In a subsequent case. Lord Henlei/ said, that the commis- Ex parte
sioners are a court of justice, sufficient for the purpose of having ^^"^' 2 Black,
their witnesses protected, at least by the Court of Chancery, it „,.^ Ex parte
not by themselves; else witnesses would be in a strange dilenuna. Kemey, 1 Atk.

570

BANKRUPT.

55. But |pe If they do not appear, they are liable to be committed by the

Kinder v- vVil- court for their contempt ; if they do, they are liable to arrests,

R 576 contr.' whicli would be absurd, and therefore impossible.]

Ex na'rte Kins II ^^^ witness Is privileged, whether lie attend under a suni-

7 Ves. 312. ' nions from the commissioners, or voluntarily.

Ex parte Byne, i Ves. & Bea. 516.

So also a creditor, attending to prove his own debt, is pri-

vileged.

Ex parte Bry-
ant, 1 Madd.'
11. 49. Ex parte List, 2 Rose, 24.

Arding v.

Flower,

8 Term R. 534.

1 Ves. & Bea.
316. 11 Ves.
556.

16 Ves. 415.
1 Mont. Dig.
104. Kinder v.
Williams,

A bankrupt attending, upon notice, a meeting of the commis-
sioners to declare a dividend, is protected from arrest, although
such meeting is several years after his last examination.

The proper application for discharge in such case, is by
motion to the Lord Chancellor; though in some cases it has
been done by petition.

The contempt is against the commissioners; and the Court
of King's Bench refused to discharge the party ; since it was not
the court of which the contempt was committed. ||

supra ; and see 1 Deacon, 1 60.

(D) Of the Assignees; and herein of the Manner and
Time of choosing them, Hof their Removal, || and
Nature of their Trust, URights and Duties.lj

IG.

lie G. 4. c

§61.

The words in
Italics are
new. (a) See
Ex parte Jar-
land, 2 Rose,
361. Ex parte
Butterfield,
1 Rose, 192.

II TRY the sixty-first section of the 6 G. 4. c. 16. it is enacted,

" that at the second meeting appointed by the commissioners

'* as aforesaid, or any adjournment thereof {a\ assignees of the

" bankrupt's estate and effects shall be chosen ; and all creditors

" who have proved debts under the commission, to the amount

" of 10/. and upwards, shall be entitled to vote in such choice;

" and also any person authorized by letter of attorney (6) from

*' any such creditor or creditors, upon proof of the execution

{b) This power « thereof, either by affidavit sworn before a master in Chancery,

was be ore « ordinary or extraordinary, or by oath before the commission-

coniinecl to , •^ ^ •' ,

creditors " ^rs mva voce ; and in case of creditors, residing out of England,

living remote " by oath, before a magistrate iiohere the party shall be residing,
from the place
of meeting.
See 2 Rose,
561. One

partner may
execute a
power on be-
half of the
firm. 14 Ves.

" duly attested by a notary public, British minister or consul ; and
" the choice shall be made by the major part in value of the
" creditors so entitled to vote ; provided that the commissioners
" shall have pcrjcer to reject any persoji so chosen, tc/zo shall appear
" to them unfit to be such assignee as aforesaid (c) ,• and upon such
" rejection, a new choice of another assignee or assignees shall be
" made as aforesaid^
597. In those cases where parties are admitted to prove under a special order of the court,
they cannot vote in the choice of assignees. Ex parte Shaw, 1 Glyn & Ja. 163. Commis-
sioners on the day for choosing assignees are not to examine critically into the debt, but to
admit creditors for what they swear is due to them, as they are liable to an account afterwards.
1 Atk. 68. !1 [But if any obvious objection appears to the debt, it is the constant practice to
suffer the creditor only to claim, till he makes out his demand to the satisfaction of the
commissioners. Id. 71.] ||(c) The rejection by the commissioners is not final. There is an
appeal to the chancellor. 1 Mont. & Mac. 197.||

§ 62.

(D) Choice^ Bemovalj Rights , and Duties of Assignees. />7l

§ 62. " And be it enacted, that in all commissions against § 62.
*' one or more of the partners of a firm, any creditor to whom The words in
*' the bankrupt or banicrupts is or are indebted, jointly with the I'^'cs are new.
** other partner or partners of the said firm, or any of them,
** shall be entitled to prove his debt under such commission,
*' for the purpose only of voting in the choice of assignees under
*• such commission, and of assenting to or dissenting from the
" certificate of such bankrupt or bankrupts, or of either of such
*' purposes ; but such creditor shall not receive any dividend out
" of the separate estate of the bankrupt or bankrupts, until all
*' the separate creditors shall have received the full amount of
*' their respective debts, unless such creditor shall be a petitioning
** creditor in a commission against one member qfa^rm.*'

§ 63. " And be it further enacted, that the commissioners 6 G. 4. c. 16.
*' shall assign to the assignees, for the benefit of the creditors of § 63.
*' the bankrupt, all the present and future personal estate of
** such bankrupt, wheresoever the same may be found or known,
*' and all property which he may purchase, or which may revert,
*' descend, be devised, or bequeathed, or come to him, before
*' he shall have obtained his certificate ; and the commissioners
** shall also assign as aforesaid all debts due or to be due to the
*' bankrupt, wheresoever the same may be found or known ; and
*' such assignment shall vest the property, right, and interest in
" such debts in such assignees as fully as if the assurance
*' whereby they are secured had been made to such assignees ;
*' and after such assignment, neither the bankrupt nor any
'* person claiming through or under him, shall have power
** to recover the same, nor to make any release or discharge
*' thereof; neither shall the same be attached as the debt of the
*' bankrupt by any person, according to the custom of the city of
" Ij07idon or otherwise ; but such assignees shall have like remedy
*' to recover the same in their own names, as the bankrupt him-
** self might have had if he had not been adjudged bankrupt."

§ 64-. " And be it enacted, that the commissioners shall, by §G4. ^
*' deed indented and rolled in any of his majesty's courts of record, T^? words in
*' convey to the said assignees, for the benefit of the creditors as
** aforesaid, all lands, tenements, and hereditaments, except copy
*' or customaryhold in England, Scotland, Ireland, or iji any of
*' the dominions, plantations, colonies, belonging to his majesty, to
•** which any bankrupt is entitled, and all interest to which such
" bankrupt is entitled in any of such lands, tenements, here-
** ditaments, and of which he might, according to the laws of
*' the several countries, dominions, plantations, colonies, have
•' disposed ; and all such lands, tenements, and hereditaments as
♦« he shall purchase, or shall descend, be devised, or revert to or
*' come to such bankrupt before he shall have obtained his cer-
« tificate, and all deeds, papers, and writings respecting the
" same; and every such deed, shall be valid against the bank-
" rupt and against all persons claiming under him ; provided
" that xvhere, according to the fatc?5 of any suck plantation or

" colony.

572

C G. 4. c. 16.

§05.

J 66.
[It is no
ground for re-
moving as-
signees that
some of the
creditors lived
at a distance,
and had not an
opportunity of
being present
at their elec-
tion : a want
of substance
or integrity is
the true
ground on
which to
make such an
application,
^j; parte
Gregnier,
1 Atk. 91.
|tSee 5 Ves.
707. 12 Ves.
13.11 [If the
assignee be-
comes bank-
rupt he may
be removed.
Ex parte
Newton,
1 Atk. 97.;
Ijbutsee iRose,
236.11 ^^rif
the commis-
sioners act

BANKRUPT.

" colony^ such deed 'would require registration, enrolment, or rc-
*' cording, the same shall be so registered, enrolled, or recorded\
" according to the lavos of such plantation or colony ; and no suck
" deed shall invalidate the title of any purchaser /or valuable con-
" sideration prior to such registration, enrolment, or recording,
" "joithout notice that the commission has issried."

§ 65. " And be it enacted, that the commissioners shall, by
" deed indented and enrolled as aforesaid, make sale, for the
*' benefit of the creditors as aforesaid, of any lands, tenements,
*' and hereditaments, situate either in England or Ireland,
" whereof the bankrupt is seised of any estate-tail in posses-
" sion, reversion, or remainder, and whereof no reversion or
" remainder is in the crown, the gift or provision of the crown ;
" and every such deed shall be good against the said bankrupt,
" and the issue of his body, and against all persons claiming
" under him after he became bankrupt, and against all persons
" whom the said bankrupt, by fine, common recovery, or any
" other means, might cut off or debar from any remainder or
" reversion, or other interest in or out of the said lands, tene-
" ments and hereditaments."

§ 6Q. " And be it enacted, that the Lord Chancellor may, on
" petition, order any conveyance or assignment, either of the real
" or personal estate of the bankrupt, made either to assignees
" appointed by the commissioners or chosen by the creditors,
" and any enrolment thereof to be vacated, provided that no title
" of any purchaser under any conveyance prior to such order be
" thereby affected, and that no estate previously barred be thereby
" revived : and the Lord Chancellor may order the commis-
" sioners to execute a new assignment or assignments of the debts
" and effects unreceived and not disposed of by the then assignee
" or assignees to any other person or persons to be chosen by
" the creditors as aforesaid, or to execute a new conveyance of the
" real estate unsold or not conveyed to such person or persons,
** and in such manner as the Lord Chancellor shall direct ; and if
" such new assignment shall be ordered, the debts and personal
" estate of the bankrupt shall be thereby vested in such new
" assignees; and it shall be lawful for them to sue for the same
" and to discharge any action or suit, or to give any acquittance
" for such debt, as effectually as the former assignees might
*' have done ; and the commissioners shall, in the two London
" Gazettes next after the removal of such assignee or assignees
" and such new appointment as aforesaid, cause advertisements
" to be inserted, giving notice of such removal and appointment,
" and directing persons indebted to the bankrupt's estate not to
" pay any debt to the assignee or assignees so removed ; and if
" such new conveyance as aforesaid shall be ordered as afore-
" said, it shall be valid without any conveyance from any former
" assignee or assignees, or his or their heirs or assigns, provided
" that the order so made for vacating any bargain and sale be
" enrolled ; and any bargain and sale to be executed in pursuance

" thereof.

(D) Choice, Removal, Rights, and Duties of Assignees, 573

" thereof, shall be enrolled in the same court as the first bargain .
" and sale of the same estate was enrolled." the time of*

choosing him. Vin, Abr. tit. Creditor and Bankrupt (O), pi. 5.] l|The choice of assignees
is not to be disturbed on the ground that creditors were prevented by accident from
voting if they were not kept back by fraud. Ex parte Surtees, 12Ves. 10. ; nor because
the commissioners have improperly excluded the proof of a debt that would have turned
the scale unless the rejection were fraudulent. Ex parte Durent, Buck. 201. Ex parte
Shaw, 1 Glyn & Ja. 129. A creditor having adverse interests to the rest of the cre-
ditors, and choosing himself sole assignee, would probably be removed. Ex parte Martell,
1 Rose, 525.; and see 1 Ves. & B. 280. sVes. & B. 139. And an assignee may be removed
if permanently residing out of the jurisdiction, as the court has no hold upon him.
Ex parte Grey, 15 Ves. 274. Qu. How far the interference of the bankrupt in the choice will
rentier it void ? Ex parte Shaw, 1 Gljn & Ja. 1 27. If several assignees are chosen jointly,
and one is ineligible, the whole choice will be set aside. Ibid\ [When an assignee is
removed, he must join with the old assignee and the commissioners in making an assignment
to the new assignee. Vin. Abr. tit. Creditor and Bankrupt (O), pi. 3. And where an assignee
is removed on account of his own bankruptcy, Lord Harduncke was of opinion that he and his
assignees must join with the commissioners in executing an assignment to the new assignee.
1 Atk.97.] iJBut where the assignee has absconded, or from other cause could not execute
the assignment to the new assignee, the Lord Chancellor has directed the first assignment to
be vacated, and ordered an immediate assignment from the commissioners to the new assignee.
Ex parte Bainbridgc, 6 Ves. 451. Ex parte Leman, 1 5 Ves. 271. Ex parte Cooke, Ibid. ; and
see the sixty-sixth section of the present statute, which is extended to assignments, in order to
obviate doubts on the thirty-first section of 5 G. 2. c. .30. An order for removal of one assignee,
unless followed up by a release or assignment from him to his co-assignees, or by a new assign-
ment from the commissioners to the new assignee, does not devest the estate out of such
assignee, Bloxam v. Hubbard, 5 East, 407. By the present statute, section 66. no purchaser
under any conveyance prior to the order to vacate, shall be thereby affected. An assignee
retiring on his own request must give security to be approved by the Master against costs to
be incurred in any action by reason of his retiring, and must also pay the costs of his removal
and of the new choice. 3 Madd. 273. Buck. 465. 5 Madd. 76.||

§ 67. " And be it enacted, that whenever any assignee shall § 67.

*' die, or a new assignee or assignees shall be chosen as aforesaid,
*' no action at law or suit in equity shall be thereby abated ; but
'' the court in which any action or suit is depending, may, upon
*' the suggestion of such death or removal, and new choice, allow
" the name of the surviving; or new assignee or assignees to be
" substituted in the place of the former ; and such action or suit
" shall be prosecuted in the name or names of the said surviving
*' or new assignee or assignees, in the same manner as if he or
" they had originally commenced the same."||

Assignees are in the nature of trustees ; and where they employ in re Enrl of

an agent to receive or pay money, who abuses their confidence, Litchfield,

they must, like other trustees, answer over to the ce&tiii que tiidsts. l^^^^^gyfg

But when they employ an agent [a), either from necessity, or con- Belchier,

formably to the common usage of mankind, they have been Ambl. 218.

holden not liable, provided they have used due precaution in the l| See AV parte

I • f.i ' 1 1*' ^ V/ilkmson,

Choice or the person employed. ^^^^j. jy^ji

From their being considered as mere trustees, it follows, that j Atk. 89.
each is separately answerable only for what he receives ; and the {h) But Lord
negligence of one shall not hurt any of the others [b), ])rovided H'lrdwicke
they be not at all privy to any private and personal agreement [f,e"i"J"er"ion
entered into by their co-assignee. of the words

"jointlT/ and severally" in the assignment, for the security of each assignee. 1 Atk. 90.
II If a judgment is obtained against two assignees for a joint Hart v. Biggs,
debt, and one of them pays the whole sum, he may recover a ^^^h Ca. 245.

moiety

574

BANKRUPT.

Lingard v.
Bromley,
1 Ves. & Bea.
114.

Can V. Read,
5 Atk. 695.

moiety as contribution from the other, without shewing that the
defendant has any money of the estate in his hands.

And if one assignee pay the whole of a loss occasioned by the
joint act of himself and the other assignee, the other cannot defend
himself in an action for contribution on the ground that he acted
for conformity on the advice of the plaintiff. ||

Another consequence is, that payment of a debt to one assignee
will not be good.

llSee 1 Esp. N. P. C. 1 14. 4 Esp. N. P. C 220.j|

Primrose v.
Bromley,
1 Atk. 89.
||But the pe-
nally of 20
per cent,
under the
104th section,
is not a spe-
cialty debt. Buck. Ca. 495.||

If an assignee becomes insolvent, and has applied any of the
money received by him in that capacity to his own use, the com-
missioners are to be considered as specialty creditors, because the
commissioners executed a counterpart of the assignment to them ;
and the agreement, being under hand and seal, makes it in the
nature of a specialty debt, and therefore they may come upon
his real estate.

Ex parte Gra-
ham, 3 Ves, &
Bea. l."0. Ex
parte Bebb, 1 9
Ves. 222. Ex

II And where an assignee becomes bankrupt with money of the
estate in his hands, his own estate is held not entitled to receive
any of the dividends due on the assignee's proof under the com-
mission of which he was assignee, until they have reimbursed in

parte Bignold, fu^ the money in the assignee's hands belonging to the estate

2 Madd. 470. ^^ which he was assignee.

By the 6 G. 4. c. 16. § 106. the commissioners shall, at the
last examination of the bankrupt, appoint a meeting, not sooner
than four months from the issuing of the commission, nor later
than six months after the last examination, and give twenty-one
days' notice in the London Gazette to audit the accounts of the

6G.4. c. 16.

§ 106. This
clause is new ;
and see § 101.
as to assignees'
accounts, and
1 Mont. &
Mac. 289.

assignees, when the assignees shall deliver a true statement, m
writing, of all money received by them (a), and on what account
in ^!f ?^f ^ and how employed : and the commissioners shall examine the

Ca. 92. 504. i*^ "^ • i i • x i • xi_

account, and enquire whether any sum appearing to be in the
hands of the assignees ought to be retained, and may examine
the assignees upon oath touching the truth of such accounts;
and the assignees shall be allowed to retain all such money as
they have expended in suing out and prosecuting such commis-
sion, and all other just allosvances.H

It is the duty of the assignees to sell all the bankrupt's property
as soon as it can be done with advantage ; and if they neglect to
dispose of it, the Chancellor, upon petition of a creditor, will
order a sale, notwithstanding the assignees should be desirous of
keeping the estate, as conceiving it to be more beneficial for the
creditors than a sale.

Ex parte
Goreing, 12th
June 1790,
Co. Bankrupt
Laws, 325.
||See6Ves.622.
17 Ves. 514.
15 Ves. 228.11
Ex parte
Lewis, 1 Glyn
&Ja. 69. Ex
parte Buxton,
Jd. 55.

Ex parte
Dunman,
2 Rose, 66.

II If an assignee buys in the property without the authority of
the creditors, it is at his peril, and if a loss arises on a re-sale
he must bear it.

There is nothing in the statute to prevent assignees selling by
private contract, and with consent of creditors it is unobjection-
able ; but if done without consent, it is a circumstance not to be

disregarded

(D) Choice, Removal, Rights, and Duties of Assignees. SJS

disregarded on a complaint that the property, by a different mode
of disposing of it, might have been rendered more productive.

It is an established rule that an assignee, commissioner, or Ex parte Rey-

solicitor to the commission, is incapable of purchasing property nolds, 5 Ves.

of the bankrupt, or dividends under the commission, and such '^°'^- ^^ P"'"'«

purchase is ground of removal of an assignee. e^^^^F^ ^^^*'
James, 8 Ves. 337. Use parte Bennett, 10 Ves. 38 1. JEx parte Wright, 2 Rose, 244. Ex parte
Badcock, 1 Mont. & Mac. 231, •*

And unless the creditors expressly assent, the Court of Chan- 8 Ves. 352.
eery will not permit an assignee or solicitor to divest himself of ^-^ parte
his character of trustee, so as to be entitled to purchase ; since it 1 qi r °^' j
would lead to mischief if a person in this situation might act up 12. Ex parte
to the period of the sale, getting all the information that could Page, 4 MadJ.
be useful to him, and then discharge himself from his character, ^9. Ex parte
and buy the property. & Ja is?^'^"

It is now settled that assignees are in the situation of ordinary 5 Ves. 145.
vendors, and are bound to make a good title to the bankrupt's ^ 1 Ves. 357.
estate sold, unless they expressly stipulate that the purchaser is J^^cdonald v.
to have only such a title as the bankrupt had. 12 Ves. 277

Freme v. Wright, 4 Madd. 364. See 1 Deacon, 353.

Assignees selling a leasehold estate of the bankrupt are not Wilkins v.
entitled to a covenant of indemnity from the vendee against the Fry, 1 Meriv.
rent and covenants in the lease ; as the assignees' liability to the ^* ^'*^*
lessor is at an end when they assign over the lease, such indem-
nity is unnecessarJ^

By the 78th section of the 6 G. 4-. c. 16., (which is altered from e G. 4. c. 16.
the 3 G. 4. c. 81. § 4.,) the Lord Chancellor may, on petition of § vs.
the assignees, or of any purchaser, if such bankrupt shall not try I'hese words
the validity of the commission, or if there shall have been a verdict jj^g words " at
at law establishing its validity, order the bankrupt to join in a the time of
conveyance ; and if he shall not execute within the time directed the allowance
by the order, he and all persons claiming under him are estopped P '.*"^,"''.*^'^ \°
from objecting to the validity of the conveyance, and all estate i,is (.cruH-
in him shall be as effectually barred as if he had executed. cate."

By the 87th section (which is new) no title to property sold $ so-

under the commission, or under any order in bankruptcy,
shall be impeached by the bankrupt, or any person claiming
under him, in respect of any defect in the commission or pro-
ceedings under it, unless the bankrupt shall have commenced
proceedings to supersede the commission and duly prosecuted
the same, within twelve calendar months from the issuing of the
commission. II

The creditors and assignees stand in the place of tlic bank- Brown v.
rupt, and are subject to the same equity, and bound by all acts Jones, 1 Atk.
fairly done by him; for although the court will favour creditors '^jj v^"^*
as much as they can, it must be where they have a superior j' Atk. 562.
right to other persons.

Where a mortgage is made on a lease pledged by a bankrupt, Russell v. Rus-
equity will supply a defect in the conveyance against the assignees. ^^"» ^ '^""own

Taylor v. Wheeler, 2 Vcm. 664.
If

576 BANKRUPT.

Buckley v. If there is a custom in the country that half-a-year's rent

Taylor, should become due on the day the tenant enters upon the

2 1 erm K. 600. . , . iii- •ii. %

premises, the assignees are bound by it, notwithstanding the

tenant had committed an act of bankruptcy before he took the

premises, and made the agreement to pay half-a-year's rent in

advance.

Ashbrooke v. The statute of -limitations will run against the assignees from

r ^"h 7o ^^^ ^™^ ^^ ^^^^ original promise to the bankrupt.

Grey v. So where in an action brought against the defendant by an

Bendish, Cases assignee, he pleaded the statute of limitations ; the court resolved
mUiquity, 171. ^.j^j^j. ^^^ statutes of bankrupts transfer the right to the assignee,
but it is no more than the old right which the bankrupt had be-
fore he had committed any act of bankruptcy, and therefore the
assignee must take it in the same plight and condition as the
3P.Wms.i44. bankrupt himself had it; and that the statute of limitation was
a bar.

Where a creditor before bankruptcy agrees to take less than
P '""''^ . , his debt, so that it be paid precisely at the day, and the debtor
528. ' ^^'^^ ^^ payment, he cannot be relieved ; and if the debtor be-

comes bankrupt, the assignees will not be entitled to bind the
creditor by his composition, but he has a right to prove his
whole debt.
Ex parte -^t is the duty of the assignees to make a dividend as early as

Lane, 1 Atk. possible after the time given by the statute for creditors to come
90. Treves v. jn and prove their debts : and if they neglect making a dividend,
i ^h"' ^^ v' ^^^ keep the money in their own hands, they will be liable to
17. 1783.^ Co! interest for it.]
Bankrupt Laws, 344. \\Ej; parte Edwards, 6 Ves. 3. Ex parte Townsend, 15 Ves. 470.(1

6G.4. c. 16. II By the 102d section of the 6 G. 4. c. 16., it is enacted, that at

$102. the meeting for the choice of assignees, the major part in value

e 102 sec- ^f ^YiQ creditors, may direct how, and with whom, and where
tion omits any . , ' •',» i i n i • i • i

express inj line- money received out or the estate shall be paid in and remain

tion on the until divided ; and if the creditors shall not make such direc-

assignees to tion, the commissioners shall immediately after such choice, and

conform to the ^^ ^^^^j meeting do so ; but no money shall be directed to be

clu'ection or , . ^ •* ,

the creditors paid into the hands of any commissioner, or of the solicitor, or

orthecommis- to any banking-house or house of trade, in which any such com-

sioners. The missioner, or the solicitor, or assignee, is interested.

words " or

assignee" are new; see Ex parte Baker, 18 Ves. 246.

The 10.3d sec- By the 103d section the commissioners may, when expedient,

tion empowers Jirgct any money, part of such estate, to be invested in exchequer

sioners to iii- hills, and may direct where such bills shall be kept, and cause

vest, without them to be sold when expedient, and the proceeds to be again

any application laid out in the purchase of exchequer bills, or applied for the

by the assig- benefit of the creditors, subject to the controul of the Lord
nees, or by ^, ,, ' j

five or more Chancellor,
creditors, which was before necessary.

The penalty ^^ ^^^® 104th section, if any assignee shall retain or employ

extends to for his own benefit, or knowingly permit any co-assignee so to

retain

(E) Of Creditors, and Proof of Debts. 577

retain or employ any sum to the amount of 100/., part of the " fenowingly
estate of the bankrupt, or shall neglect to invest any money in P^^"''{^'"g ^'V
the purchase of exchequer bills, when so directed as aforesaid, &^r&c" which
such assignee shall be charged with interest thereon, at 201. per was not the
cent., and the commissioners shall charge every such assignee in case under

his accounts accordingly. ^^^ former

° "^ . statute ; and

also to '• neglecting to invest" as well as " retaining" any sura, and the word '^wilfuUj/" be-
fore " retain " is omitted. See Buck Ca. 1 97.

The act is imperative on the commissioners to charge 20l.per Ex parte
cent, in the cases enumerated. ^""^y' * ^***®>

144.

The penalty does not apply to the case of a bankrupt assignee, Wackerbarth
having previous to his bankruptcy misemployed money, this v. Powell,
case being provided for by the 49 G. 3. c. 121. § 4-. (now re- Buck 495.
enacted by § 105. of 6 G. 4. c. 16.), which enacts that the ^'1^5^;^^
certificate of a bankrupt assignee, who is indebted to the estate 1 Qlyn & Ja.
of which he is assignee, for money so retained or employed for 405.
his own benefit, shall only free his person from arrest, but
his future effects shall remain liable for such debt to the estate.

Neither the commissioners nor the Lord Chancellor can allow Ex parte
travelling expenses to the assignees, however proper it may be ^^^'Jl ^*®'
for the creditors to make such allowance ; and where an assignee p^g^j i^ln
happens to be an accountant, he is not allowed to charge the & Ja.'??.
estate for business done in that character. 1|

(E) Of the Creditors, who are such ; «ind herein of
proving their Debts.

JlTIJY 6G. 4. c. 16. $ 46., it is enacted, " that at the three eG. 4. c.is.

" several meetings so appointed by the commissioners as § ^6.
" aforesaid, and at every other meeting by them appointed for
" proof of debts, whereof and of the purport whereof ten days*
" notice shall have been given in the London Gazette, every
*' creditor of the bankrupt may prove his debt by his own oath ;
" and all bodies politic and public companies incorporated, or Thb is new.
" authorized to sue or bring actions either by chartei' or act of
" parliament, may prove by an agent, provided such agent shall
" in his deposition swear that he is such agent as aforesaid, and
" that he is authorized to make such proof; and if any creditor
" shall live remote from the place of the meeting of the com-
" missioners, he may prove by affidavit, sworn before a Master
" in Chancery, ordinary or extraordinary ; or if such creditor
" shall live out of England, by affidavit sworn before a magi-
" strate where such creditor shall be residing, and attested by a
" notary public, British minister or consul; and no creditor
" shall pay any contribution on account of any such debt,
" provided that it shall be lawful for the said commissioners to
" examine upon oath, either by word of mouth, or by interro-
" gatories in writing, every person claiming to prove a debt
" under the said commission, or to require such further proofi
** and to examine such other person in relation thereto, as they
•' shall think fit."
Vol. I. P p $ 47.

578 BANKRUPT.

§ 47. § 47. " And be it enacted, that every person with whom any

" bankrupt shall have really and hondjide contracted any debt oi
" demand, before the issuing of the commission against him^
" shall, notwithstanding any prior act of bankruptcy committee
** by such bankrupt, be admitted to prove the same, and be s
*' creditor under such commission, as if no such act of bank-
" ruptcy had been committed ; provided such person had not, at
" the time the same was contracted, notice of any act of bank^
" ruptcy by such bankrupt committed." | M

§ 48. By § 48. the commissioners may order wages or salary due to "

This is new ^^^ clerk or servant of the bankrupt to be paid, (not exceeding
an annual ^'^ months on salary) and the clerk or servant may prove for
salary is within the amount. As to Apprentices, see jpost^ 586.
this section, l Mont. & Mac. 194.; and see Id. 95.

The first part By § 108. it is enacted, " that no creditor having security for his
is from ^11*^'°" " ^^'^'> ^"^ having made any attachment in London^ or any other
21 Jac. c. 19. " place, by virtue of any custom there used, of the goods and
§ 9. The " chattels of the bankrupt, shall receive upon any such security or
clause in ita- " attachment, more than a rateable part of such debt, except in
its Ian "^^' " respect of any execution or ext^t served and levied by seizure
is very ol^ " upon, or any mortgage of or lien upon any part of the property
scure; but " of such bankruptbeforethebankruptcy;/)rowWe^Ma^nocrerfzVor,
the construe- " though fw a •valuable consideration, 'ncho shall sue out exeadioii
the"se"ti "''^^ " '^P^''^ ^''^y J^^E,^^^''^^ (obtained hy defaidt, confession, or nil dicit,
that a ere- ' " shall avail himself of such execution, to the prejudice of other fair
ditor, suing " creditors, but shall be paid rateable 'xith such creditors." \\
out execution on judgment obtained on verdict, is entitled to retain the goods seized, provided
the seizure takes place before the act of bankruptcy ; but that a creditor suing execution on
' a, judgment by default, &c. will not be entitled to retain the goods unless the sale as well as
seizure are complete before the bankruptcy. Where the creditor has completed his execution
by seizure and sale, he is no longer " a creditor having security for his debt," within the sec-
tion ; and therefore if a creditor after the seizure buys the goods himself of the sheriff, and the
assignees afterwards take possession of them, he may maintain trover against them. Wymer v.
Kemble, 6 Barn, & C.479.; and see Morland v. Pellatt, 8 Barn. & C.722. If a creditor on
judgment by nil dicit sues out execution, and the sheriff seizes the debtor's goods, and the
debtor becomes bankrupt, and the sheriff after notice of the bankruptcy and commission, sells
the goods and pays the proceeds to the creditor, the sheriff is liable to the assignees for the
amount in an action for money had and received. Notley v. Buck, 8 Barn. & C. 160. But
the court vyill not in such case compel the sheriff by rule to pay over the proceeds of the sale
to the assignees of the bankrupt. In re Washbourn, Id. 444. Nor will they set aside the
execution, for the statute does notrender the execution void, but merely enacts that the plain-
tiff in such execution shall share rateably with the other creditors. Taylor v. Taylor, 5 Barn.
& C..'592. An execution on a final judgment following a judgment by default in assumpsit is
within the proviso. Cuming v. Welsford, 6 Bing. 502. And it applies to judgments obtained
before the act took effect. Ibid.

^Ex parte Creditors, upon what security soever they be, come in all

5 \T^'w°"^ii' ^9"^^» unless such as have obtained actual execution before the
' ■" bankruptcy, or have taken pledges for their just debts ; and the
reason is, because, from the act of bankruptcy, all the bankrupt's
estate is vested in the commissioners, who are established fls
courts of justice touching the bankrupt's estate, and before whom
the creditors must authenticate their debts, in order to receive
their dividends ; and therefore they must equally admit all per-
sons to make proof of their debts : but such as have pawns cr
, , mortgages have a property in the thing so pledged, precederit

(E) Creditors^ and Proof of Debts, (Creditors holding Security.) 579

to the translation of the property to the commissioners ; in which
case they have only an equity of redemption, and are in no better
condition than the bankrupt himself. [When a creditor comes
to prove his debt, he is obliged to swear, whether he has a
security or not; and if he has, and insists upon proving, he
must deliver it up for the benefit of his creditors (a) : unless it (a) i Atk.ios.
be a joint security from the bankrupt and another person ; in (*) ■^' P"''^
which case he may come in for his whole debt under the com- ?f""nV. -,'
mission, witliout being compelled to deliver up the joint-secunty, Parr, i Rose,
as he is entitled to recover what he can from the co-security, and 76. Ex parte
take his dividend upon the whole of his demand upon the bank- ^w'^j^^lll.
rupt's estate, provided he does not receive more than 205. in the ^^^^"'^•'''''•ll
pound on the whole, (i)]

II If a bill is lost, the proof may be admitted on an indemnity. || Ex parte
Greenway, 6 Ves. 812.; and see Ex pvrte Hossack, Buck, 390.

[When a creditor has a mortgage, or other pledge, which he ^' parte
apprehends is not equal to the payment of his debt, he must ^"^Ti^^q
apply to the Chancellor to have the pledge sold, and that Co. Bankrupt
he may be admitted a creditor for the residue ; and the com- Laws, 149.
missioners may direct the sale to be before them, or by public
auction.]

II The Lord Chancellor has no authority to compel a second Ex parte
mortgagee, who rests on his security, to join in a sale obtained Jackson,
by a prior mortgagee. ^^^^' ^f^'

Topham, I Madd. 38. 2 Christ. 323.

And the commissioners cannot under the general order sell 15 Ves. 434.
an equitable mortgage, but there must be a petition.

Where the mortgagee wishes to bid for the mortgaged estate, ^-^ P^''^^
it is usual for him to apply for leave to do so, though this does ^ \iajj r.
not seem absolutely necessary. Ex parte

Ducane, Buck, 18. Ex parte Hammond, Buck, 464.

Although in general a mortgagee, with a power of sale, is a Downes v.
trustee for the party making the conveyance, and as such dis- ^ J^^^ g^ *
abled from purchasing himself, yet it has been determined, in Ex parte
bankruptcy, that he may waive his special power of sale under Hodgson,
the deed, and come in for a sale in his general character of ^ ^iyn & Ja.
mortgagee.

By the 98th section of 6 G. 4. c. 16. it is declared that all See 2 Espin.
sales of real or personal estate of the bankrupt shall be free J?^' "'jJ^JJ^^Qn
from auction duty. B.L. 201.

Where a creditor holding a security is desirous of voting in Exparte Hop-
the choice of assignees, the court will sometimes permit proof of ^^l^\^'^^.
the debt, deducting the value of the pledge, and imposing such ^rrx/jar/r De*
terms that justice may be done to the estate. Tastet, i Rose,

322. 324, 325. 2 Rose, 63. 1 Ves. & Bea. 518. Buck, 383. 1 Glyn & Ja. 391.

But where the right to the security held is contested, or where ^J P^'^''J^^ ^^^
it is held under a preference given by the bankrupt, the court ^^^Jj^ 423.'
will not order the security to be valued, and the creditor to prove o jac. &
for the difference. ^Vnlk. no.

1 Glyn & Ja. 65. 27?.

P n 2 The

580 . BANKRUPT.

\'"^°\[^ H^R '^^^ mere selling of a pledge by a creditor, without application
2^62^2 Bos & *** ^^^ commissioners, does not, if there is no fraud in the trans-
Pull. 191. li. action, destroy his right to prove the remainder of his debt.||
Ex parte Hil- [Bonds, bills of exchange, and other personal securities,
Her, 1 9th July pledged or deposited with a creditor, may be directed to be sold
Bankrupt before the commissioners in the same manner as an estate. ,

Laws, 149.

Ex parte If a debtor, by way of collateral security, deliver a bill of ex-J

Smith, 19th change or promissory note to his creditor, without his nam©
Dec. 1784. appearing on the paper, it must be disposed of as a pledge, and
the produce applied to reduce the debt, the residue only of the
demand being proveable under the commission.
Ex parte Where, indeed, a person takes a bill without the name of the

Whitter, 6th party from whom he receives it, it may be a pledge, or a pur-
Feb.1190. chase, according to the agreement of the parties. If it is taken
Robens^ist ^^ ^ P^^dge, it must be sold ; but if as a purchase, it liquidates
June 17*89. ^^^ ^^^^t to the full amount of the bill.
Ex parte Smith, 18th Nov. 1789. Hid. 150. Bank of England v. Newman, 1 Ld.Raym. 442.

Ex parte "Where a creditor has two demands, one proveable under the

^une^i790^^^ commission, the other not, he may apply his security, in the
Ex parte ' ^^^^ place, to reduce that demand which is not proveable.]
Arkley, 26th Nov. 1791. Co. Bankrupt Laws, 150. 153.

Ex parte [j Where a creditor elects to prove under the estate, in pre-

isYes^"90 Terence to resting on his mortgage or lien, he cannot afterwards
Ex parte withdraw his proof, and have the benefit of his security. ||

Solomon, 1 Glyn & Ja. 25. Ex parte Hornby, Backj 351. Ex parte Burn, 2 Rose, 55.
Chapman v. If J, sells lands to B., who afterwards becomes a bankrupt,

1 viltf'o^-, and part of the purchase-money is not paid, A. shall not be
1 Vern. 267. ,i. ^i .' t "^ i i ^ ru i *

obliged to come m as a creditor under the statute oi bankrupt,

but the land shall stand charged with the money unpaid, though

there be no agreement for that purpose.

Co, Bankrupt Corporations usually appoint a clerk or treasurer, who is the

Laws, 155. person to prove debts due to them ; he must, however, produce
1(a) JNow un- i . . ^ , , , .. , \ *■

necessary • it "'^ appointment, under seal, to the commissioners, (a)

is sufficient if he swear that he is agent, and authorized to prove. 6 G. 4. c. 16. § 46.||
Ex parte || Where the creditor is aged and imbecile, the commissioners

575. • and see ^'^^ ^^ directed to admit the proof on such evidence as is satis-
1 Rose, 587. factory to them.|j

Ex parte Jf the bankrupt's estate is in arrear for taxes, the collector

1 1 1 if th sieems the proper person to prove the debts, and he ought to
are two col- produce his appointment, that the commissioners may judge of
lectors, who the legality of it : but if the collector himself should become
divide the nio- bankrupt, having received the taxes from the inhabitants, but
iiey received^ "°^ P^^*^ *^^ money over, one of the inhabitants may prove fc^'
and one of ' himself and the rest,
them becomes bankrupt, the other shall prove on behalf of the parish the whole sum remain-
ing in their hands not paid over. Ex parte Moggeridge and Clarke, 4th Feb. 1790. Co. Bank-
rupt Laws,, 156. ||Where a navy agent was bankrupt, an admiral was allowed to prove fa"
himself and the crew. 1 Mont. Dig. 143. For an assessment for church and highway rates the

assesspi'

(^)0f Creditors, and Proof of Debts. (Creditor's Election.) 581

assessor must prove. Lloyd v. Heathcote, 2 Bro. & Bing.388. Where a debt is due to an
infant, the guardian on petition will be allowed to prove. 2 Bro. C.C.306. And where a
creditor was deranged, the court permitted a friend to prove on his behalf. Ex parte Maltby
I Rose, 387.; and see 2 Russ. 575.1|

The privilege of creditors to come in and prove their debts, Ex parte
and bankrupts to be discharged therefrom, is said to be co-ex- Groom,
tensive and commensurate. However, the court will not abso- ^Ef^'all^wA
lutely stop a creditor from bringing an action, but put him to liamson,^
his election ; and should he elect to proceed at law, he will still i Atk. 83.
be allowed to prove his debt, for the purpose of assenting to or
dissenting from the certificate, which permission is absolutely
requisite to make his remedy at law of any avail ; for should the Ex parte
bankrupt procure his certificate, he will be thereby discharged Capot, i Atk.
from that action, as well as from all debts contracted before the ^''^^'
act of bankruptcy.

Where a creditor has proceeded at law, before he applies to Ex parte W\\-
prove his debt under the commission, he ought not to be per- liamson,
niitted to prove without relinquishing his proceedings at law, i Atk. 83.
unless by order from the Great Seal, for the purpose of signify- ^°'"*; doubts
mg his assent to, or dissent from, the certificate. tertained of

this; but see Ex parte Botteril, 1 Atk. 109., where the commissioners refused.

But the circumstance of a creditor proving his debts pre- Ejc jmrte Dor-
viously to proceeding at law against the bankrupt, does not ^'' , "^^^ ' '
amount to a conclusive election to take under the cpmmission ; J^injsav Id.
for a creditor has been suffered to make his election of proceed- 220. Exparte
ing at law against the bankrupt himself, after having proved his Capot, Id. ^^
debt, and received two dividends, upon condition of refunding ^^^•
what he had received. But the case, perhaps, might be different,
if the creditor had in view the charging a third person, as the
security, or the bail of the bankrupt.

Therefore, where a creditor had proved his debt, and signed Aylett v. Har-
an agreement to permit the bankrupt to keep his house still open for ^^rd, 2 Black.
trade, and to make him an annual allowance ; and the bankrupt
afterwards deserted his house and absconded ; upon which the
creditor proceeded to fix the bail, and served execution upon
them : the court said, there were some instances, in which the
Court of Chancery permits a creditor to do certain acts, such as
proving his debt, and voting for assignees, without binding him
to come in under the commission, and renounce his legal
remedy. But the creditor here has gone much farther, — he has
made his election, has acquiesced under the commission, and shall
not, on a subsequent unforeseen event, at the distance of u
twelvemonth, desert the commission, and come upon the bail by
surprise.

The being chosen assignee will not prevent the creditor from Ex parte
suing the bankrupt at law if he has not proved his debt, for in Ward, 1 Atk.
that case he can only be considered as a creditor at large; and ^j'' ,^^^^ q^^.
even if he has proved his debt, and chosen himself assignee, he viHiers, M
may still elect to proceed at law, and be discharged as a creditor 221.
under the commission.

Pp 3 UA pcti-

582

BANKRUPT.

1 Atk. 153.
1 Bro. C. C.
270. 8 Term
R. 344. 5 Ves.
1. iVes. &
Bea.315.
1 Glyn & Ja.
92, 2 Rose, 8.

Ex parte
Hinklin, 2d
Feb. 1775. Ex
parte Warder,
22d Dec. 1790,
Ex 2^nrte Ca

II A petitioning creditor has always been considered as having
made his election ; and though the commission be not opened
the petitioning creditor cannot proceed at law, if the commission
be capable of prosecution. But the petitioning creditor need
not relinquish his action before presenting his petition. The
statute applies only to proof or claim under the commission. |j

If a creditor, at the time the commission issues, has the bankrupt
in execution, he may prove his debt under the commission, and
elect to discharge the bankrupt. But if aftet- the commission has
issued, a creditor proceeds at law against the bankrupt, and takes
his body in execution, it is a conclusive election, and he will not
ton, 21st Z)tc. be entitled to prove so as to receive a dividend, although he

i790.^x should afterwards discharge the bankrupt out of custody.
/>ar/f Rattray, » ^ •'

loth August 1791. Ex parte Bisson, 23d March 1792. Creditor having taken bankrupt in
execution subsequent to the commission, afterwards released him, and was permitted to
proved: Debt expunged. So J?* /?a7-/<? Hewitt, 21st Jan. 1789. Co. Bankrupt Laws, 160,
161, 162, 163.

II An attachment after the commission issued for nonpayment
of money into court under an order is not such an election.
Qudsre as to an attachment for nonpayment of money to the
party.

And if the bankrupt after judgment and a ca. sa. issued,
surrender in discharge of his bail, but is never charged in exe-

Ex parte Ben
jamin, Buck
Ca. 41.

J?* parte Cun
dall, G Ves.

446. Ex parte cution by the creditor, this is no election by the creditor so as
Arundel, , i j u- • n

1 8 Ves. 231 . : to P^'ecl ude his provmg. ||

see Deacon B. L. ch. 9. § S,

Ex parte
Hopkinson,
5d June 1790.
1 Ves, jun.159.
Fif/e Co. Bank-
rupt Laws,
163, 164,165.

Ex parte
Crinsoz, 1 Bro.
270.

Ex parte Bot-
teril, 1 Atk.
109.

Ex parte Mat-
thews^ 3 Atk.
817.

If a creditor is proceeding at law, the bankrupt is entitled by _
petition to put the creditor to his election, either to abide bvj
the commission and waive the proceedings at law, or relinquish
all benefit under it; but whether the creditor can be compelled
to elect before a dividend, seems to be somewhat unsettled :
though the modern determinations, supported by some of an
earlier date, have mostly put him to his election before a divi-
dend, provided the application was not made before he had a
reasonable time of examining into the bankrupt's affairs.

If a creditor has demands upon the bankrupt of distinct na-
tures, or in different rights, he is at liberty to prove one under
the commission, and proceed at law for the recovery of the other.
Therefore, where a bankrupt had borrowed 100/. upon bond
of a near relation, who had arrested him upon the bond and
charged him in execution ; and had another demand for a year's
rent, which he offered to prove under the commission, but would;
not waive his execution upon the bond debt; and the commis-i
sioners, therefore, refused to admit him to prove ; Lord Hard-
•wicke said, that though it was a hard case upon the bankrupt,
yet, as the debts were entirely distinct, he should be allowed to'
prove.

So, on a petition Es parte Alatfhexvs, where it appeared that
Mr. Gary had proved a debt under the commission in right of
his wife, amounting to 5000/., being her fortune under a mar-
riage settlement, and also brought an action at law in his own

right

(E) Of Creditors, and Proof of Debts. (Creditor's Election.) 583

right for a debt due to him for goods sold and delivered;
the Lord Chancellor observed, the court would never suffer a
creditor to split a demand, and prove part under the commis-
sion, and prosecute at the same time a bankrupt for the re-
mainder at law. But that in this case there are two remedies
and different rights ; and he even thought he might have done
it, if the debts had been both in his own right. Suppose one
debt had been due to Mr. Gary by bond, and another upon an
account current, and he had brought a bill here for the account,
and an action at law upon the bond; these are two distinct things,
and therefore the court will let him go on, both in law and
equity. If indeed, he was to bring a bill in equity for an account
current, and an action at law for a particular item in that account,
the court would, in that case, oblige the plaintiff to make an
election.

||Important alterations were made respecting the creditors' gG. 4. c. i6.
election, by proving or by proceeding at law, by 49 G. 3. c. 121. § 59.
§ 14., which has been re-enacted with some additions by the
59th section of the present statute.

By this section it is enacted, " that no creditor who has brought
" any action, or instituted any suit against any bankrupt in re-
" spect of a demand prior to the bankruptcy, or which might
" have been proved as a debt under the commission against such
" bankrupt, shall prove a debt under such commission, or have
" any claim entered upon the proceedings under such commission
" without relinquishing such action or suit. And in case suck r^^^ clauses
" hanknvpt shall be in prison or aistody at the suit of m' detaijied in italics
" by such creditor^ he shall not prove or claim as aforesaid ivithout are new.
" giving a siiffi^ient authority in "writing for the discharge qfs:iich ^^^ rormcrly
" bankrupt [a): and the proving or claiming a debt under a com- to the Lord
" mission by any creditor shall be deemed an election by such chancellor
" creditor to take the benefit of such commission with respect to was in general
" the debt so proved or claimed : provided that such creditor necessary.
" shall not be liable to the payment to such bankrupt or his
" assignees of the costs of such action or suit so relinquished by
" him, and that where any such creditor shall have brought any
" action or suit against such bankrupt jointly with any other per-
" son or persons, his relinquishing such action or suit against the
" bankrupt shall not affect such action or suit against such other
" person or persons : jnwided also, that any creditor ivho shall
" so have elected to prove or claim as aforesaid, if the commission
" be aftei-^ards superseded, may proceed in the action as if he had
" 7iot so elected, and in bailable actions shall be at liberty to
" ar7'est the defendant de novo if he has not put in bail below or
" perfected bail above, or if the defendant has put in or petfectcd
" such bail, to have recourse against such bail by requiring the
" bail below to put in afid pa feet bail above xmthin the first eight
" days in term, after notice i?i the London Gazette of the super"
" seding such commission, and by suing the bail upon their recog-
" nizance if the condition thereof is broken."

The proof under the commission is only an election to take >Yatson v.

Pp 4 the

584. BANKRUPT.

Medex, the benefit of the commission as to that particular debt, and

1 Barn. & A. such proof does not preclude the creditor from bringing an
121. Harley v. action or suit for a distinct debt : but the former part of the
s Barn. & Aid ^^^^'on* prohibiting a creditor who has brought an action or
95. Howell V. instituted a suit from " proving a debt," or " having am/ claim
College, entered " under such commission, without relinquishing such

5 iaiint. 174. action or suit, applies to prevent a creditor from proving a?iy
Mills' 4Bin(r distinct demand whatever under the commission without relin-
19. 'Ex parte quishing his action.

Dickson, l Rose, 98. Ex parte Hardenberg, Ibid. 204. Ex parte Glover, 1 Glyn & Ja. 270.
Ex parte Edwards, 1 Mont. & Mac. 116.

Barn. & Aid. And although the proof of a debt is an election to take the

benefit of the commission as to the particular debt, yet if an

action is afterwards brought for that debt the proof cannot

be pleaded in bar, but the bankrupt must either apply for a stay

of proceedings to the court in which the action is brought, or to

the Lord Chancellor to expunge the debt.

Heath V. Hall, A creditor proving a joint debt under a separate commission

4 Taunt. 526. against one of the partners is not prevented from proceeding at

Glass" 16 East ^^^^ Against the others; for the statute only relates to cases

252. 'sed vide' where the party having proved his debt sues the same person

I Gow. 199. under whose commission he has proved.

Mead v. Bra- It has been decided by the Court of King's Bench, that where
ham, 3 Maule \}^q holder of a bill proves under a commission against the
see 14 East acceptor, and afterwards receives the amount of the bill from the
565. Ex parte drawer, the drawer is not bound by the election of the holder to
Lobbon, come in under the commission, but may proceed at law and

i7Ves. 554. ; arrest the bankrupt for the debt. Lord Eldon in a prior case
& Aid. 482^ ^^^ decided the contrary. But that case is perhaps distinguish-
able on the ground that the drawer had received a dividend on
the holder's proof before he proceeded at law, and might perhaps
therefore be considered as having personally elected to take the
benefit of the commission.
Ex parte Tay- A party who accepts an assignment of a debt proved is sub-
lor, 1 Glyn & gtantially a creditor proving, and thereby relinquishes an action
wliat acts wil? brought against the bankrupt,
amount to an election within the statute, see I Rose, 204. Id. 181.

Read V. Proof of a debt under a second commission, or under a com-

Sowerby, mission against a bankrupt who has before compounded with his

3 Maule & S. creditors, is such an election to take the benefit of the commis-
Vili of ^^^ ^^^^ ^ deprives the creditor of his remedy against the bankrupt's
the present future effects in case of his estate not paying 155. in the pound,
statute, which in such case vests the future estate in the assignees under the commission with
power to seize, &c. &c.

Linging v. If a creditor, after judgment obtained, proves under the com"

Comyn, mission, and then proceeds against the bail of the bankrupt, the

2 1 aunt. 246. court in which the action is brought will discharge them.

Ex parte A creditor on proving is not bound to produce the rule for

\Voolley, discontinuance of the action at law, for the proof itself is a dis-

1 Rose, 394. continuance. But by the clause in the present statute where

the

(E) Creditors, and Proof of Debts. (Executor. — Annuitant) 585

the bankrupt is in execution, the creditor is bound to give a
written authority for his discharge.

And where a creditor sues the bankrupt, and then comes in Kemp ▼.

under the commission, the bankrupt is entitled to have some ^^'^'"' ,
entry or suggestion put upon the record showing the election of *"° '^ '
the plaintiff. II

If an executor becomes bankrupt, as he acts in aider droit, his Ex parte
bankruptcy does not take away the legal right of executorship, ^"'*> J^ •^*'
nor does the commissioners' assignment affect the testator's Llewellvrf^ki^
assets, except as to such beneficial interest as the bankrupt ragiy the matter of
himself be entitled to. But though a bankrupt executor may William Mose-
strictly be the proper hand to receive the assets, yet if his ^^y* " bank-
assignees have received any of the property, a court of equity j^g^ ^' '
will, for the benefit of creditors and legatees, appoint a receiver,
with whom the assignees shall account. And the court will do
so upon petition.

As bankruptcy does not affect the right of an executor, in Ex parte

strictness he is himself the proper person to be admitted to Leeke, 2 Bro.

prove against his own estate ; which is not incongruous, as he ^ "" ' ^^^'

does it in auter droit, and the danger of embezzlement may be ^^^wyk^ jg^

prevented by ordering the dividend to be paid into court : and June 1793.

this was done in a case where the petitioner was a creditor of the 'ike order. Ff

bankrupt's testator to the amount of 286/. : part of the effects of f^^ property
% uG consider*

the deceased, to the amount of 432/., were in the bankrupt's ^^ig l^^j

hands ; and, on petition to be permitted to prove this demand Thurhw said,

against the bankrupt's estate, Lord Thurlona ordered that the he would not

bankrupt, as executor, should be admitted a creditor under the ^^^^uj^i^ g'p

commission issued against him for the sum of 432/. 75. \\d. in Wms. 547.

the petition mentioned, and that the assignees should pay the ||See Ex parte

dividends into the bank, in the name, and with the privity of the Shakeshaft,

accountant-general, in trust, in the matter of A. B. the bankrupt, ^93°^ 1^

subject to further order. Moody,
2 Rose, 413. It is settled that a bankrupt executor cannot prove without an order. Ex parte
Shaw, 1 Glyn & Ja. 127.1|

A creditor by an annuity, where the annuity is merely personal, ^j. p^^g

is entitled to come in under the commission, provided the penalty Artis, 2 Ves.

of the bond be forfeited prior to the bankruptcy, (a) In order to ^^o- ^' P*"''*

prevent, on the one hand, the injustice of admitting him to j \tit° "51 *

prove only the arrears accrued due before the bankruptcy, and, Perkiiis v. *

on the other, the great inconvenience that would ensue if the an- Kempland,

nuity should be received from time to time as an accruing debt 2'^''*'^^*^*
on the estate, a value is set upon the annuity, and he is admitted ^rfJture has*

a creditor for the sum at which it is valued. been incurred,

no act of the annuitant shall amount to a waver of it, for it is for the benefit of both parties
that it should be so. Wyllir v. Wilkes, Dougl. 523.

If the annuity is secured by a deed of covenant, and a bond is Fletcher r.
likewise given as an additional security, which is forfeited for ^Jr'^ti" q|!^°*
nonpayment before the bankruptcy, the creditor in that case is jj^^'^ ^^j
not obliged to prove under the commission, but may proceed at Bankrupt (1)^
law for the breach of covenant, notwithstanding the bankrupt pi--*. 4 Burr,
has obtained his certificate. Cottrcl v.

Houke, Dougl. 9f .
11 But

5S6

BANKRUPT.

6G.4. C. 16.
§ 54.

The clause
in italics is
new. Tlie
clause has been
held to apply
to annuities
granted before
the passing of
the act. Bell
V. Bilton,
4 Bing. 618.;
and see sRuss.
422. See as to
fixing the

802.

Ex parte
Sandby, 1 Atk.
149. Barwell
V. Ward,
1 Atk. 261.

II But by the 54th section of the present statute, (which re-
enacts, with a slight addition, the 49 G. 3. c. 121. § 17.,) it is
enacted, " that any annuity creditor of any bankrupt, by what-
*' ever assurance the same may be secured, and whether there
" were or not any arrears of such annuity due at the bankruptcy,
" shall be entitled to prove for the value of such annuity, which
*' value the commissioners shall ascertain, regard being had to
" the original price given for the said annuity, deducting there-
^^ from such dimimition in the value thereof as shall have been
**. caused by the lapse of time since the grant thereof to the date of
** the commissions^ And by § S5. {see post, 604.) the certificate is
made a discharge from all claims either of the annuitant or
the surety in respect of the annuity ; and see § 121.

value, 19 Ves. 557. 1 Rose, 101. 1 Meriv. 10. In valuing the annuity the commissioners can-
not consider the altered state of the annuitant's health. 2 Glyn & Ja. 102. Nor the state of
the money market. Id. 29.

Winter v. A bond for the payment of half-yearly interest on a principal

MoLiseley, sum of money is not an annuity bond within the meaning of the
2 Barn. & A. statute, capable of being valued and proved. |1

An apprentice can come in as a creditor only for the sum re-
maining due, after deducting for the time he has lived with the
bankrupt. It is usual, indeed, for the commissioners to recom-
mend it to the creditors to allow him a gross sum out of the
estate, for the purpose of binding him to another master ; but
this, though equitable and just, is not what he is entitled to de
jure, nor, of course, what the court can order.

II By the 49th section of the present statute the issuing of the
commission shall be a complete discharge of the indentures ;
See 2 Glyn & ^^^^ ^^ proof of the fee paid, the commissioners may order any
sum to be paid to the use of the apprentice as they shall think
reasonable ; regard being had to the amount of the fee paid, and
to the time during which the apprentice has resided with the
bankrupt. II

A petition was preferred on the part of a daughter, to be let in
as a creditor on the estate of her father, a bankrupt, for the money
he had received from the managers of the theatre on her account,
offering an allowance thereout for living with and being main-
tained by him, during her acting on the stage. It was alleged on
her part, that the court is so far from giving the father all the
earnings of the child, that it will not suffer the father to be eased
of the maintenance of a child who has a fortune ; but will let the
whole interest accumulate, and the father maintain the child,
unless unable to do so.

Lord Chancellor said, he was under some difficulty for the
sake of the precedent ; for it is true that this question is the same
as it would have been between the daughter and the father, if he
had not been a bankrupt, and could answer to an action for him-
self; whether after all this transaction the daughter could in an
action have recovered against the father all this money, as money
had and received to her use ? He said, it might be dangerous
in London to lay it down as a general rule, that if a father having
several children, who earn money which he receives, becomes

bankrupt,

6G.4.

§ 49.

C. 16.

Ex parte
Macklin,
2 Ves. 675.

(£) Of Creditors, and Proof of Debts. (Wages.~Rent.) 587

bankrupt, every child can come in and claim his debt for that
money so had and received while they lived together, and were
part of his family. A father frequently sends out his son to
work as journeyman, and his earnings are taken to be the
father's. Here, said his lordship, the father, mother, and
daughter were all actors, and lived together ; the father received
the whole. It is extraordinary to say, that after a length of
time this shall be all called back, because of an act of bank-
ruptcy. He referred it therefore to the commissioners to enquire,
how much the father received to the child's use, unless as to so
much as was a covenant with the daughter herself. But, to
avoid the expense of an account, it was agreed that the petitioner
should be admitted as a creditor for a particular sum ; but no
allowance to be made for maintenance.

li Where the son lives with his father as clerk, and only Ex parte
receives board and lodging, if there is no contract for wages he Glover,
cannot prove, although the father swear it was his intention to ^ Mont- Dig.
give wages, and his assignees do not object. || j y'^'^ ^"^ ^^

and § 48. of the new act, ante, p. 578.

A landlord having a legal right to distrain goods while they i Atk. 102
remain on the premises, the issuing of a commission of bankrupt 103, 104.
against the tenant, and the messenger's possession of the goods
of the tenant, will not hinder him from distraining for the whole
rent in arrear ; for it is not such a custodia legis as an execution ;
and even there the law allows the landlord a year's rent. And \^

though, by the assignment by the commissioners of the bank-
rupt's estate and effects, the property of the goods is changed,
yet the assignees take them subject to every thing which they are
subject to in the hands of the bankrupt ; and while upon the pre-
mises they remain liable to be distrained.

But if the landlord neglects to distrain, and suffers the goods l Atk. 102.
to be sold by the assignees, he can only come in with the rest of
the creditors pro rata.

A commission issued against A., who was a tenant of jB., and Ex parte
owed him twelve years' rent. JB., the landlord, came in, and Grove, 1 Atk.
proved his debt under the commission, and the assignees sold ^^^'
the whole goods to Grove the petitioner, who lived in the tenant's
house. The landlord, three years after proving his debt, dis-
trained upon those goods as being still upon the premises.

Lord Hardwic/ce, upon the second hearing of the petition, g^ ^^ ^^
determined that the vendee of the goods under the assignees was Devinc und
entitled to the goods; and ordered, that the proceedings of tiie Mary his wife,
landlord should be restrained, and confined him to his remedy 1 3th Jan.

, 1 ^1 • • 17V6. Co.

under the commission. Bankrupt

; Laws, 221. Bradyll r. Ball, 1 Bro. Chan. K. 487. S. P.

HA commission of bankrupt is decided not to be an execution Ex parte Do-
within the meaning of the statute 8 Ann. c. l^., and therefore a visne, Cookc'i
landlord is not entitled to a year's rent, in preference to the ^^'^^l^^l^^^'
other creditors. isEe^t.Jsu;

but sec Duck v. Braddyl, 13 Price, 455.

The landlord was formerly entitled to distrain for any amount 6G.4. c is.

of 5 74.

588 BANKRUPT.

of rent; but, by the 74th section of the present statute, nq

distress for rent made and levied after an act of bankruptcy,

whether before or after the issuing of the commission, shall

be available for more than one year's rent accrued prior to

the date of the commission ; but the landlord shall come in as a

creditor for the overplus.

Buckley v. As the landlord has a right to distrain on the bankrupt*S|

9 T 'r goods, notwithstanding the bankruptcy, so it has been held that

if he buy the goods of the assignee he may deduct from the

price the debt due to him for rent. j

Stevenson v. go also if the bankrupt, after an act of bankruptcy, pay rent

C 2(xf ' ^° '^^^ landlord under a threat of distress, this money cannot be

Mavor v. recovered back by the assignees ; for if the landlord chooses to

Croome, Waive his legal lien, and take the money instead, he has a right

1 Bing. R.261. to retain it, as if he had made an actual distress. ||

Co. Bankrupt It is stated in 1 Atk. 103., that a mortgagee of a bankrupt's

Laws, 225. estate, although he pays the arrears of rent that is due to the

bankrupt's landlord, shall not be preferred to the creditors under

the commission, unless he applies to the court for an order that

\\Sed vide he may stand in the place of the landlord ; but, from the cases

«M/jra.|| above referred to, it rather seems that no such order could be

obtained, because, unless the landlord actually distrains, he has

himself no lien upon the goods.

Ex parteDoh- On a distress for rent, goods were sold, and 111. 35. remained

son, 7 Vin. Jq ^q constable's hands, who became a bankrupt. The tenant

dies, and his executor prays to be paid this money by the assignees,

in preference to the other creditors.

It was argued, that this comes to the hands of the constable by
due course of law ; and the case of Wright v. Dixon was cited,
where goods were taken in execution by Wilcox ^ bailiflPof West-
,kol .jbA • "minster^ who died; and the judgment and execution being after-
wards set aside, the court ruled, that the widow and executrix of
Wilcox should refund the money, though she alleged she had
not assets to pay specialties.

But the Lord Chancellor said, that case was against an execu-
trix ; and, though the law makes a difference between one creditor
and another, yet in case of bankruptcy all creditors are upon an
equal footing. If any thing remained in specie, it might be
different; but here the money is embezzled by the constable.
He therefore ordered the petitioner to come in as a creditor
with the rest
JBxparfeBen- Commissioners, after a man becomes a bankrupt, compute
net, 2 Atk.528. interest upon debts no lower than the date of the commission,
Bromley v. because it is a dead fund ; and in such a shipwreck, if there is a
1 Atk. 79. salvage of part to each person, it is as much as can be expected.
Ex parte But there is no direction in the act for that purpose ; and it has

Rooke, 1 Atk. been used only as the best method of settling the proportion
ill' "^17" among the creditors, that they may have a rate-like satisfaction ;
where interest "^'^ ^°^^ ^^ certificate operate as a discharge of the fund before
was allowed vested in the assignees, thereby to deprive the creditors of sub-
subsequent sequent interest ; but extends only to any remedy to be taken
misl^on'^und - against the person of the bankrupt, or his future effects.

a special act brparliament.ll

If,

(E) Of Credit or Sy and Proof of Debts. (Interest) 589

If an estate mortgaged is not adequate to the payment of prin- Ex parte
clpal and interest, the interest is only to be calculated to the date WartlelJ, 29th

of the commission. ™* V">

cited and con-
firmed. Ex parte l{e\ey,lOt\i Nov. 1192, Co. Bankrupt Laws, 227. 1|E* par/<; Badger,
4 Ves. 165.||

But, if it is sufficient for that purpose, the assignees cannot 7 Vin. Abr.
redeem without paying interest to the time of redemption. I'o.

A special creditor cannot have interest beyond the penalty i Atk. 75.
contained in his security ; but a creditor by note carrying interest
may receive the full amount. However, if the bearing of interest Ex parte
is not specified in the note, it will not of itself entitle the holder Marlar, 1 Atk.
to claim any; but he may prove the whole sum specified in the ^^^'
note, notwithstanding he deducted the discount at the time of
receiving it.

II By the 6 G. 4. c. 16. §57. it is enacted, that in all future 6G.4. c. I6.
commissions against any person liable upon any bill of exchange '^'''
or promissory note, whereupon interest is not reserved, over due
at the issuing the commission, the holder of such bill or note
may prove for interest on the same to the date of the com-
mission, at such rate as is allowed by the Court of King's Bench
on bills or notes.

The general principle is, that interest is only provable under Ex parte Far-
the commission when it arises by contract. Ca^2i*9 *"^

If it is merely claimable as damages, it might be recovered in Ex parte
an action ; still, as it is unliquidated, it is not a debt proveable. Champion,

3 Bro. C. C. 456.

The custom of trade is received as evidence of a contract „
between the parties that the debt should carry interest. Han^ey sBro.

C. C. 504- Ex parte Mills, 2 Ves. 295. Dornford v. Dornford, 12 Ves. 127. Ex parte Boyd,
1 Glyn & J. 285.

Where goods are sold upon an agreement to deduct a certain Ex parte
per centage for discount for prompt payment, the vendor can Ainsworth,
only prove for the reduced price, although prompt payment is Ex parte Vi-
not made. || gou, 3 Madd.

136.

There is a difference between debts that carry interest and a Bromley v.
special deposit of goods and stock ; for in the former, the interest Child, 1 Atk.
shall be continued down to the date of the commission, but in ^^^*
the latter it is otherwise, for the interest stops from the time of
the deposit; and a calculation shall be made of the value of the
whole entire thing deposited, both principal and interest, be it
stock or goods, according to the market price at the time of the
deposit.

Where a joint commission is taken out, and the usual order
obtained, for keeping distinct accounts of the separate estates of
each partner, the creditors of the separate estates are not entitled
to interest upon their debts after the payment of twenty shillings
in the pound, unless the joint creditors have also received twenty
shillings in the pound ; but the overplus of the separate estate
must be applied to increase the joint fund.

Thus

590

BANKRUPT.

Ex parte Thus, upon a petition by separate creditors to be allowed

^oardman, 2cl interest on their debts carrying interest, before the surplus of
' ' the separate estate should be carried over to the joint account, it
appeared that a joint commission had been taken out against two
bankrupts, and an order obtained for keeping distinct accounts,
and that there was a surplus of the separate estate of one of them^
after paying his separate creditors twenty shillings in the pound i
but the Lord Chancellor was of opinion, that such separate
creditors were not entitled to interest, unless the joint estate ha(J
also paid twenty shillings in the pound, and therefore dismissed
the petition.

On actions, whether of debt, assumpsit, or for a tort, the judg-t
ment, when signed, relates to the verdict; and the costs de
incremento, when taxed, are annexed to those assessed by the
jury, and become consolidated with them by a fair and equitable
relation of law ; and therefore they may be proved as a debt, if
the verdict is prior to the bankruptcy. >

B. R. Co. Bankrupt Laws, 232. Ex parte Simpson, 3 Bro. Chan. R. 46. Lewis v. Piercy,
1 H. Black. R. 29. ||Blandfbrd v. Foote, Cowp. 138.||

II It seems now settled, after an elaborate and profound ex-
amination of the previous authorities by Lord Eldon, that where
the act of bankruptcy happens before verdict, the costs are not
proveable as a debt under the commission, whatever may be the
nature of the action.

Aylett V. Har.
ford, 2 Black.
R. 1517. Ex
parte Talbot,
4 Burr. 2445.
Langford v.
Ellis, Easter
Term 1785,

Ex parte Hill,
1 1 Ves. 646.
Sed viile Scott
v. Ambrose,
3 Maule & S.
326. Dinsdale

V. James, 2 Brod. & B. 8.

Robinson v.
Vale, 2 Barn.
&C.762.;
and see 4 Barn.
&C.880.
7 Barn. & C.
436.

Where the verdict is before the act of bankruptcy, and thej
judgment is entered up before the issuing of the commission-
then, whatever may be the form of action, the costs may be
proved as being a debt contracted before the issuing of the coin-
mission ,- provided the creditor, when judgment was obtained,
had no notice of the act of bankruptcy.

Where the action is in contract for a debt due, and the
verdict is found before the bankruptcy, although judgment is
not entered up till afterwards, and after the issuing of the com-
mission, there the costs are now settled to be incorporated with
the original debt by the verdict, and to be consequently prove-
able under the commission.

But in actions of tort, there is no debt until the judgment is
completed ; and consequently, although a verdict is obtained in
such an action before the bankruptcy, if the judgment is entered
after the issuing of the commission, the costs do not, by the mere
verdict, become a debt, and are not proveable under the com-
mission.

And the rule appears the same (as the principle certainly is) j S,
in case of actions of contract for unliquidated damages. 1 1

Sed vide Beeston v. White, 7 Price, 209. It is to be observed that the question in 14 East,
197. was as to a petitioning creditor's debt, not as to a debt proveable. The question
whether costs are a debt proveable, and whether they are barred by the certificate, are
not identical. On the contrary. Lord Eldon, in Ex parte Hill, 1 1 Ves. 656. treats theni
as distinct j and the Vice-Chancellor, in 1 Glyn & James, 387., expresses the inclination of
his opinion, " that the costs of proceedings in an action of contract which, for want of pre-

viout

Ex parte
Poucher,
1 Glyn & Ja.
585. See Dea-
con's Law of
Bankrupt,
vol.i. 277.

Buss V. Gil-
bert, 2 Maule
& S. 70.

In re Charles,
14 East, 197

(E) Of Creditors, and Proof of Debts. (Costs when proveable.) 591

vioiis verdict, are not proveable under the commission, are yet barred by the certificate
with the original debt," The courts in these latter cases appear to lean in favour of a party
whose whole property has been taken from him by the bankrupt laws, and are thus dbposed
to consider such costs as merely incidental to the debt existing before the bankruptcy • and
that the bankrupt being discharged from the principal debt due, it is reasonable he should be
discharged from the accessorial debt. By this distinction the above cases of Langford v. Ellis
Lewis v. Piercy, Blandford v. Foote, Scott v. Ambrose, Dimsdale v. Eames, and Beeston v*.
White, which were decided on applications to give effect to the certificate by discharging
the bankrupt or setting aside an execution, may be reconciled with the authorities in the text
as to costs proveable under the commission.

Where a plaintiff is nonsuited at nisi prius, and before the Hunt v. Mead,
judgment of nonsuit is signed becomes bankrupt, it seems that ^JF^'"'" ^J^S-
the costs are a debt proveable under the commission. j g*g* ^ p^lj**

134. Sed vide Ex parte Todd, cited 3 Wils. 270.

This doctrine has, how^ever, been often doubted ; and the case
of Waifs V. Hari was decided contrary to the inclination of the
court upon the subject.

And where the defendant has a verdict at nisi prius, and the Walker v.
plaintiff becomes bankrupt, and a commission issues before ^^"^*'
judgment is signed, it is decided that the costs are not a debt ^-^a'^°j346.
proveable.

And so where a cause was referred at nisi prius to an arbi- Haswel! v.
trator, and he found that a sum was due from the plaintiff to the Thorogood,
defendant, and ordered it to be paid, and the plaintiff became '^ ^^nu & C.
bankrupt between the order of reference and the taxing costs ^^
and signing judgment ; it was held, that the taxed costs were
not proveable, and were not barred by the certificate.

But if the judgment was signed before the commission, though Robinson v.
after a secret act of bankruptcy, they would be provable. See Vale, 2 Barn.
6G.4. c. 16. §47. &C.762.

Until the late statute, costs incurred in equity could not be Ex parte
proved unless they had been taxed before the bankruptcy. Sneaps, Co.

But now, by the 6 G. 4. c. 16. §58. if any plaintiff in any gQ 4^ <,. I6.
action at law or suit in equity, or petitioner in bankruptcy or ^58.; and see
lunacy, shall have obtained any judgment, decree, or order Rex v. Davis,
against any person who shall thereafter become bankrupt, for 9 East, 320.
any debt or demand in respect of which such plaintiff or peti-
tioner shall prove under the commission, such plaintiff or peti-
tioner shall also be entitled to prove for the costs incurred in
obtaining the same, although not taxed at the time of the bank-
ruptcy. ||

A bond, though it is not assignable at law, may be proved by Co. Banknipt
the assignee under the commission ; but the assignor must join '""ws, 182,
in the deposition that he hath not received the debt, or any part
thereof, or any security or satisfaction for the same.

II And a trustee cannot prove without the cestui que trust joining Ex parte Du-

him in the proof: unless a special order for the purpose is bois, iCoxR.
, ^ . , ^ *^ *^ * 310. 1 Deacon,

obtamed. 224.

By §53. of the present statute (taken from 49 G. 3. c. 121. 50.4. c. i«.

§ 16.), under a commission against an underwriter, the proof may § 53.

be made by the person who effected the policy, though not

beneficially interested, provided the person interested is in Etm'

laiul;

592

BANKRUPT.

Toussaint v.
Martinnant,
2 Term R. 100,

Ex parte
Cockshot.in
Chan. 23 J
March 1792.
Co Bankrupt
Laws, 187.

Cooper V.
Pepys, 1 Atk.
107. Ex parte
"Wildinan,
1 Atk. 109,
and 2 Ves.113.
contra.

Ex parte Le-
f'ebre, 2 P.
Wms. 407.

Ex parte
Leers, 6 Ves.
644.

Ex parteWoT-
rall, 1 Cox.
R. 509, Ex
parte Bank of
Scotland,
2 Rose, 198.
Ex parte
Walton, 1 Atk.
123. Ex parte
Ryswicke, 2 P.
Wms. 89.

Ex parte
Marshal,
1 Atk, 129,

Co, Bankrupt
Laws, 195,
Ex parte
Smith, in re
Lewis and

land: and the assured in a policy and the obligee in a bottomry
bond, may make a claim before a loss, and prove after the loss,||

If a person gives an absolute bond to another who became
surety for him, or who accepted bills of exchange drawn upon
him by the obligor, not having effects in his own hand to answer
them, it is a good consideration for the bond, and he is entitled)
to prove it as a debt under the commission, although he has not!
himself paid the money at the time.

If a bond, given by a trader to indemnify another who has'
become surety for him, be forfeited before bankruptcy, the'
surety may prove payments made by him, subsequent as well as
prior to the bankruptcy. i

The holder of a bill of exchange is entitled to prove his debt'
under a commission against the drawer, acceptor, and indorser, ' '\
and to receive a dividend from each upon his whole debt, pro-
vided he does not in the whole receive more than twenty shillings,
in the pound. But there is a distinction in this case, where thefi i
creditor applies to prove his debt after having received a part, '
and where he applies to prove previously to having received any
payment or composition ; for if the creditor at the time of proving'
has received any part of the bill, he can only prove for so much'
as remains ; but if, after having proved for the whole, he receives
a part of the bill from any of the persons liable to pay it, he is en-
titled to a dividend upon the whole, provided it does not exceed
twenty shillings in the pound upon such part as remains due.

II And where a dividend is declared under another commission,
under which the holder has already proved the bill, though the
dividend has not been received the amount must be deducted
from the sum proved.

And if the creditor, not being prepared to prove, enters a claim
for his whole debt, still, if a dividend is afterwards declared
under the other commission, he is only entitled to prove for the
residue, deducting such dividend. ||

In bills of exchange and promissory notes there is a double
contract ; the first between the principal debtor and creditor, and
also an implied contract, that the principal debtor will indemnify
the surety ; so that if the creditor (the indorsee) comes upon the
surety (the indorsor), the indorser or his assignees may come in
against the original or principal debtor. But this, as before
observed, must depend upon the time when the surety paid the
debt ; however, if the holder of the bill prove it under the com-
mission against the person who ultimately ought to pay it, before
the surety is called upon, the surety seems to have an equitable
right to stand in the place of the holder, and receive the divi-
dends upon his debt. '

If a person discounts several bills for another who afterwards
becomes a bankrupt, and the holder proves the aggregate amount
of the bills, accepting them as a security, and any of the bills
are afterwards paid in full, the amount of the bills paid must be

deducted

(JS,) Of Creditors^ and proof of Debts. (Bills of Exchange.) 593

deducted from the proof, and the future dividends be paid upon Potter, loth
the residue of the debt only. In the same manner, where bills ^°^' ^"'^ ^^'
of exchange have been given as a security for a general balance, '^* ^ ' ^^*
or for a debt exceeding their amount, and upon a bankruptcy the
creditor has proved the whole amount of his debt, excepting
such bills ; if any of them are duly honoured, or by any means
fully satisfied, they must be taken as a payment pro tanto, and
the future dividends made on the residue of the debt. One Lee Exparte'^^&\.
a bankrupt, was indebted to Welch and Company, bankers and ^^^> ^"^'^
partners, in 159/. 155. 2c?. for money by them advanced to him, ^^' ^^**^'
and interest thereon, for securing which he indorsed to them two
promissory notes and a bill of exchange. This debt they proved
under the commission. After the proof Welch and Co. were
fully paid one of the notes, amounting to 58/. l'2s. by the
drawer, and they delivered up the note to him ; by which means
the debt from the bankrupt was reduced to 101/. Ss. 2d. Welch
I and Co. insisted upon receiving their dividends upon the whole
159/. 15s. 2c?. proved by them, notwithstanding the payment of
the said note ; upon which the assignees presented a petition to
expunge or deduct the sum of 58/. 12s., the amount of the note,
from their debt, which, after hearing counsel, was ordered ; and
it was directed that Welch and Co. should be paid dividends only
lon the sum of 101/. Ss. 2rf., residue of the said sum of 159/.
il5s. 9,d. rateably, and in equal proportions, with the rest of the
creditors of the bankrupt.

If a bill of exchange or promissory note is drawn by way of ^°- Bankrupt
accommodation, yet the party holding it for a valuable consider- jg^^'igg^'^^
ation is entitled to prove to the whole extent of the bill or note, parte King,
and receive the dividends, provided they do not amount to more loth Nov.
than twenty shillings in the pound on the consideration which ^"^^-Ex
he o-ivp •' ° ^ parte Crossley,

"^ save. 3 B^Q Cjjjj,^

R. 237. \\Ex parte De Tastet, 1 Rose, 10. Ex parte Martin, 2 Rose, 87. Sed vide Ex pari*
Reader, Buck, 381. Deacon, eh. 9. § 15.||

IJBut such bill cannot be proved by one of the parties to the Ex parte
accommodation against the other ; nor can a person who takes it _ y^^"^^'.
up for the honour of the drawer prove it against the estate of "^
the acceptor, for he has only the same rights as the drawer. ||
i The liability to pay money is a good consideration for a bill Toussaint v.
jof exchange, and will entitle the party to prove it, although the Martinnant,
payment is to be made in future, or depends upon contingency, '"i't^^j
And this does not at all militate against the rule that contingent ^gn {q^^
debts are not proveable (a) ; because the claim under the commis- April 1785, in
iion is upon an instrument creating an absolute debt at law, for ^'«»- Ex parte
rt'hich the subjecting one's self as a surety, or the delivering of j^yZ\''t
;ounter-notes is a good consideration. pg^ie Lord

Clanricarde, 27th Juli/ 1787. Co. Bankrupt Laws, 199, 200, 201, 202, 203. ||Kolfe v. Caslon,
i H. Black. 570. Buckler v. Buttivant, 3 East R. 72. (a) ContingcDt debts are now proveable
t)y 6 G. 4.0. 16. §56.||

UBut it seems now settled, that a surety, claiming to come in Ex parte
^ a creditor on an exchange of notes or acceptances, must, ^'y^s^"',
: I Vol. I. Q q before

59*

BANKRUPT.

Cowley V.
Dutilop,
VTermR. 565.
Buckler v.
Buttivant,
n East R. 72.

before proof, take up his own bills, or exonerate the bankriij
estate from any liability on them.

Where parties exchange acceptances, the acceptance of one
party is a good consideration for the counter-acceptance of the>
other; and each party's remedy against the other, is on the
counter-acceptance of the other. And in such cases, if one
party has been compelled to pay his own acceptances, he has no

Chitty on Bills, remedy against the other on any implied contract of indemnity,
because he does not accept in consideration of a promise of
indemnity, but in consideration of an actual executed delivery of
other acceptances ; and consequently, in case of the bankruptcy
of such other he cannot prove the sums paid on his own accept-
ances ; but his proof can only be on the acceptances of the other.
Whether bills are given in consideration of each other, is a
question of fact depending on the particular circumstances of,
each case. The circumstance of a variation in the time or suniS;
is evidence affecting this question, but not conclusive that they^
were not given in consideration of each other. If it is agreed
that each party is to pay his own acceptance, this seems con-
the bills were given in consideration of

444. (6th edit.)
Eden's B. L.
143. Deacon's
B.L. 258.

Ibid.

that

Cowley V.
Dunlop, supra.

elusive evidence
each other.

If the drawer of a
acceptance take it

Ibid.

bill accepted in consideration of his ow a,
up and pay it, after the bankruptcy of the,
acceptor, and the bill has not been proved by the holder under
the commission, such drawer may prove it; but if the holder has,
proved and received dividends from the acceptor's estate it is
otherwise. And therefore, if the assignees of such drawer (who,
has become bankrupt) pay dividends to the holder, who has also^
received dividends from the estate of the acceptor, the amount
so paid by the assignees of the drawer cannot be proved againsti
the acceptor's estate; for this would be coming upon the ac-
ceptor's estate twice for the same debt.

Where two parties, holding accommodation acceptances of
each other, became bankrupt, it seems settled that the cash
balance alone is to be proved by one against the estate of tlie
other, and that the bills are not to be taken into account.

Lord Rosslyn said, it struck him there were but two ways of
taking the account between the two estates ; either to consider
all the bills as struck out entirely, or to consider them all as,
good bills : and he pronounced an order that the cash balance
only should be proved.

the knot without untying it. Eden's B.L. 144. ; and see Mr. Christian's ob-
servations on this intricate point, and his suggestion of another mode of taking the accoi nt.
2 Christ. B. L, 390.

Where one of two parties, who became bankrupt, owed the
other 498/., but the other had in his hands an accommodation
bill for above 1000/., which he had negotiated; it was held by
Lord EldoUf that the cash balance alone was to be proved, and
the estate of the party who had advanced the bill might i-etain
the dividends on the proof, to reimburse his estate for the
which was dishonoured. ||

Ex parte
Walker, 4 Ves.
373. Sed vide
Ex parte Raw-
son,Jacob,274.

Ex parte
Earle, 5 Ves.
833. Lord
Eldon is said
to have ob-
served that
these cases cut

Ex parte Met-
calfe, 11 Ves.
404. ; and see
1 Deacon's B.
L. 260. Ex
parte Read,
1 Glyn & J.

224.

(E) Of Creditors, and proof of Debts, (Bills and Notes.) 595

If the indorsor of a bill is compelled to pay it on account of
the failure of the acceptor, he may prove upon the bill under
the commission against the acceptor, although he did not take it
up till after the commission issued.

The house of Scott and Pearson having had frequent occasions Ex parte
to get their bills discounted by persons at Bristol, and continuing ^^"^'"' ^^^^
to require a negotiation of paper, they applied to Wilkins, the "-^
bankrupt, and to one Forsyth, to assist them by lending their
names to bills, which were to be discounted by Samuel Span of
Bristol, for the use of Scott and Pearson, whose names were not
to appear thereon. Accordingly (amongst others) three bills were
drawn hy Forsyth upon TVil7ci?is, dated 28tli o^ May 1787, for
800/. each, payable three months after date. Two to the order
oi Samuel Span, and the third to the order of the drawer; which
last was indorsed in blank by the drawer. They were all
accepted by Wilkins about the time of their being drawn. The
three bills were put into the possession of Scott and Pearson, and
were by them sent down to Span at Biistol, who indorsed them,
and procured them to be discounted by other persons, and
remitted the value to Scott and Pearson, in Bristol bank bills.
Before the bills became due, both Scott and WilJcins became
bankrupts ; and afterwards Span, as the indorsor, was obliged to
take them up.

Under these circumstances, Span was admitted to prove the
bills under JVilkins's commission. And this petition was pre-
ferred to have the proof of the debt expunged.

The Lord Chancellor considered it as a very clear point, that
a bill of exchange negotiated after the bankruptcy of the acceptor
might be proved under his commission, although the party was ^^^ Ex parte
not possessed of it at the time of the bankruptcy, for the debt j ^°|^ ^'_
accrued by the acceptance ; and that, as to the consideration, Bingley v.
there was a clear consideration paid in this case, though not to Maddison,
Wilkins ; and that iS/?aw became the holder of these bills in a fair ^^- Bankrupt
manner ; his lordship therefore dismissed the petition. '

A new petition was preferred, praying that the former petition isth Julif
might be reheard and the debt expunged. \169.

The Lord Chancellor, after hearing counsel, expressed him- g^^ Brooks v
self to be very clearly of the same opinion. Rogers, i H. *

Black. R. G40. Howis v. Wiggins, 4 Term R. 714. flThe case of Ex parte Brymer, tvprh,
has been confirmed by the cases of Ex parte Seddon, cited 7 Term R. 570. Ex parte itale,
3 Ves.so-l. Cowley v. Dunlop, 7 Term R. 5G5., and Joseph v. Orme, 2 New li, 180. The
above cases of Brooks v. Rogers and Howis v. Wiggins have been considered as inconsistent
A-ith these decisions ; but the bill in Brooks v. Rogers and the note in Howis v. Wiggins, were
indorsed by the payee and indorsor as a mere surety/ for the accommodation of the bankrupt,
without consideration, and consequently no debt could be due from the bankrupt to such
ndorsor until the payment of the bill, which took place after the bankruptcy. Vide Cullen.
>. 98. In the former cases the indorsor on a bill for valuable consideration was considered,
in taking up the bill, to be remitted to his old right against the acceptor upon the bill. Sec
ilso Houle V. Baxter, 3 East, 177.|1

I II But a person thus claiming to prove must have contracted a Ex parte
liability on the bill before the date of the commission ; therefore, j jj^^j^^'^j^
vhere a party received a bill indorsed in blank by the payee,
md on negotiating it, instead of adduig his own indorsement,

Q q 2 merelj

596

BANKRUPT.

merely wrote above the blank endorsement, — " Pay M^Cidlum,
*' or order (a)," and passed it to M' Cullum ; and after the bank-
ruptcy of the acceptor, he took up the bill and paid the money
to ]\P Cullum, and struck out the words above the blank in-
dorsement of the payee, and claimed to prove, his petition was
dismissed, since he never had been liable on the bill, and
could not, by voluntarily taking it up after the bankruptc}',
become a creditor.

A bill taken without indorsement, is not provable against
the estate of the party transferring it ; and this, although such
party may have made a private mark upon it, and may admit
that he considered himself liable on all bills transferred with
such mark.
Fyds V. Clarke, lEsp»Ca. 447. £x parte Shuttlevforth, sVes. 368.

But if there was an antecedent debt, and the bill is taken
without indorsement, if it turns out bad, the demand for the
antecedent debt may be resorted to, unless there is an express
agreement that the party taking it is to run all risks.
£jc parte Rathbone, Buck, 215.
Ex parte If the debtor deposit a bill with his creditor, as a security,

Whitter, without putting his name to it, the bill is a pledge, and must

147 Ex varte ^® sold; and the residue after sale is provable under the com-
Hustler,
3 Madd. R. 117.

(rt) Tliat this
does not
render the
party liable,
see Vincent v.
Horlock,
1 Camp. 442.

Ex parte
Roberts,
2C0X. R.171.
Fenn v. Har-
rison, 3 Term
R. 759.

Owenson v.
Morse, 7 Term
R. 65. Ex
parte Black -
burne, lOVes.
204

mission against the debtor.

Ex parte
Towgood,
1 9 Ves. 230.
Ex parte'QnTVi^
2 R-ose, 55.

Ex parte
Deev, 2 Cox.
R. 423.

Psi parte

And although the bill is indorsed, still, if the intention is a
deposit and not a sale, it will be considered only a pledge; and
the party receiving it can only prove for the real amount of
his debt.

The indorsee of a bill, indorsed after the bankruptcy of the
acceptor, can only prove such debt against the acceptor's estate as
the indorsor could have proved at the time of the commission.

So also, notes bought up qftei- the bankruptcy of the maker,
Rogers, Back, cannot be proved unless the persons possessing them at the date
490.; but see of the commission were individually entitled to prove in respect
of them.

And a party receiving a bill after it is due, takes it subject to
all the infirmities affecting it when he received it.

Where the bankrupt employs an agent to get bills discounted,
and the agent, for that purpose, indorses them, the estate must
relieve the agent from his liability; unless indeed the bankrupt
expressly refused an authority to indorse.

Buck, 479.

80.

5 Term R
7 Id. 427.
Ex parte
Robinson,
Buck, 113.
Fenn v. Har-
rison, 3 Term
R. 757.

Where the bankrupt has delivered a bill or note for valuable
consideration, and has forgotten to indorse it, he may do so
after his bankruptcy ; for the transferree had the equitable claim
on the bill, and the bankrupt having no beneficial interest in it,
it did not pass to his assignees. ||

243. 13 Ves. 206. 1 Jac. & W. 428. 1 Giyn & J. 407.

Ex parte _ Where the acceptor of a bill of exchange becomes bankrupt,

the holder may prove the amount of the bill under his comnois-

Smith V.
Pickering,
Peake's Ca.
50. ; and see

1 Camp. R. 45.

2 Jac. & W.

Smith, 5 Bro.

(E) Of Creditors, a7id proof of Debts. 597

eion, and also maintain an action against the other parties; but Chan. R. i.
if the acceptor of a bill, or maker of a note, become insolvent, ^^P'"^
or offer to compound their debts, the holder of a bill or note, others 's'lst
according to such composition, thereby discharges the posterior Dec. 1789.
parties, unless they have previously assented to his executing Co, Bankrupt
the composition deed. Laws, 214.

II Where the drawer of a bill becomes bankrupt, and his house llohJe v.
is kept open by an agent of the assignees^ notice must be given of *^'"^'^^°*^'« p
the dishonour of the bill, or the holder cannot prove upon it-lj 517 "aiSSe
19 Ves. 216. Qu. Whether notice is necessary in all cases where a drawer or iiidorsor
becomes bankrupt ?

The costs and charges of protesting bills before an act of bank- Anon. 1 Atk.

ruptcy may be proved ; but such costs accrued by protesting bills \^^' '^''J'n^''

after an act of bankruptcy cannot. Chan. R. 597.

See Francis v. Rucker, Ambl. 672.

The 7 G. 1. c. 31. reciting, " Whereas, merchants and other 7G. i. c. si.

" traders in goods, have been very often obliged, and more jhg gp"'"

" especially of late years, to sell and dispose of their goods and Wms. 395.

" merchandizes to such persons as have occasion for the same, 2 Stra. 867.

" upon trust or credit; and to take bills, bonds, promissory Notwithstand-

*' notes, or other persons' securities for their monies, payable at ^"^.^ ^ ^^\'
« ^u 1 /• .1 r • 1 .L X- "^ 1 c amble makes

" the end oi three, lour, or six months, or other future days or mention only

" payment; and the buyers of such goods becoming bankrupts, of " securities
" and commissions of bankruptcy being taken out against them " ^°r the sale
" before the money upon such bonds, notes, or other securities 4, ^nd^raer-
" became payable ; it hath been a question, whether such per- « chandize,"
" sons giving such credit on such securities should be let in to yet it is holden
*' prove their debts, or be admitted to have any dividend or to extend to
" other benefit by the commission, before such time as such bonjl'^fo^the
*' securities became payable ? which hath been a great dis- payment of
" couragement to trade, and great prejudice to credit within money; and
" this realm: " therefore enacts, *' that every person who shall that the
" give credit on such securities as aforesaid, to any person who .Vge^jupj^., »» do
" shall become bankrupt upon a good and valuable consider- not mean'se-
" ation bona fide for any sum of money or other matter or thing curity for such
" whatsoever, which shall not be due or payable at or before a sort ot debt,
" the time of such persons becoming bankrupts, shall be ad- bondl^bills
*' mitted to prove his bills, bonds, notes, or oiher securities, notes, &c.
" promise or agreement for the same, in like manner as if they Puttison y.
" were made payable presently, and not at a future day; and Bunkes.Cowp.
cc I 11 1 .-I I . I 1- II I 1 . '' 540. Brookiv.

" shall be entitled unto, and shall have and receive a pro- Lioy,|j 1 Terra

" portionable part, share, and dividend of such bankrupt's R. n.'sWila.

" estate, in proportion to the other creditors of such bankrupts, 17.

" deducting only thereout a rebate of interest, and discounting

" such securities payable at future times, after the rate of five

" pounds per centum per annum, for what he shall so receive, to

" be computed from the actual payment thereof to the time such

" debt, duty, or sum of money should or would have become

*' due and payable in and by such securities as aforesaid."

" And every person wlio shall become bankrupt shall be dis- JIBy 6G. ii.

Q q 8 '* charged

598

BANKRUPT.

" charged of and from all and every such bond, note, or other
" security as aforesaid, and shall have the benefit of the several
" statutes now in force against bankrupts, in like manner to all
" intents and purposes as if such sum of money had been due
" and payable before the time of his becoming bankrupt."

c. 16. § 53.\\
demands oa
policies of
insurance, bot'
tomry and re-
spondentia
bonds may be

claimed before the loss happens, and proved when it does happen : and these debts shall
in like manner be dischar<;ed by the certificate. It hath been holden, that insurances upon
lives are within the 7 G. 1. c. 51., though not mentioned in the preamble. Cox v. LiotarJ,
Dougl. 166.

jjBy the fifty-first section of the 6 G. 4. c. 16. (by which tbfe
above act is repealed,) it is enacted, that any person who shaK
have given credit to the bankrupt, upon valuable consideration,
for any money or other matter or thing whatsoever, which shall

6 G. 4. c. 1 6.

§ 51.

The7G. 1.
C.3I. § 1. was
held only to

apply to writ- not have become payable when such bankrupt committed an act
of bankruptcy, and whether such credit shall have been given
upon any bill, bond, note, or other negotiable security or not,
shall be entitled to prove such debt, bill, bond, note, or other
security as if the same was payable presently, and receive divi-
dends equally with the other creditors, deducting only thereout
a rebate of interest for what he shall so receive, at the rate of
five "per cent., to be computed from the declaration of a dividend
to the time such debt would have become payable, according to
the terms upon which it was contracted. ||

ten securities.
Parslow V.
Dearlove,
4 East, 438.
Hoskins v.
Duperoy,
9 East, 498.
Sarratt v.
Austin,
4 Taunt. 200.
The present
law is general
in its terais.

Macarty v.
Barrow,
2 Stra. 949.
aWils. 16.

Starey v.
Barns, 7 East,
435.

Clayton v.

Gosling,

5 Barn, & C.

560. ; and see

2 Glyn & J.

241.

Ex parte East
India Com-
pany, 2 P.
VVms. 395.

Tully V.
Sparks, 2 Ld.
Raym. 1546.

Ex parte
Caswell, 2 P.
Wnis. 497.
liSee 6 G. 4.
c. 16. $ 56.
post, 601.11

A bill drawn before the bankruptcy, though not protested till
after, is a debt that may be proved under the commission, for
the debt accrues immediately upon the drawing.

II And where a bill of exchange is accepted, and not refused
payment by the acceptor till after the bankruptcy of the drawer,
it may still be proved under the commission against the drawer.
The court, without deciding that such a bill constituted a de-
bitum in prcBsenti, thought it clearly within the words of the
7G. 1. c. 31.

And where a promissory note, payable with interest twelve
months after notice, was expressed to be for value received, and
the maker became bankrupt before any notice, it was held clearly
within the 7 G. 1. c. 31. and proveable.||

A. having contracted with the East India Company at one oF
their sales for the purchase of a parcel of goods, to be paid for
at a future day, before that day became a bankrupt. Lord King
held this case not within the above statute, because the goods
were not delivered, nor was the contract signed by the party.

^Of contingent delts.^ — Contingent debts are said not to be in-
cluded in the statute 7 G. 1.; because, it being uncertain whether
they will ever become due or not, it is impossible to make such
abatement of 51. per cent, as the act directs. And this doctrine
is now constantly followed and admitted. Lord Chancellor
King, indeed, declared, that though a debt be contingent, when
the obligor becomes a bankrupt, yet if the contingency happens
before the distribution made, such contingent creditor may com?

(E) Of Creditors, and proof qf Debts, (Damages, &c.) 599

in for his debt; or if the contingency happen before a second
dividend, the creditor may come in for his proportion thereof.
But this has been since overruled, and the contrary position Ejc parte
estabhshed; for Lord Hardwidce said, that Lord King's was Groome,
barely an obiter opinion; and that Lord Talbot aftervrards iAtk.ii8.
doubted of Lord King's assertion, and that he himself had
differed from him entirely on a former occasion, and that he
still adhered to his opinion.

One having only a cause of action, cannot come in and prove
it as a debt ; because the damages that may be given are con-
sidered merely as contingent.

Therefore, if a lessee ploughs up meadow ground, for which sWils. 270.
he is bound to pay the lessor a certain sura of money, as a
penalty, that penalty cannot be proved as a debt under the com-
mission : nor, if a man be bound in an obligation, in a certain
sum, to perform covenants, and the obligor, before he becomes a
bankrupt, breaks those covenants, can the obligee prove this as
debt under the commission.

So where in an ejectment a verdict was given for the plaintiff Ex parte
with nominal damages, but before the judgment could be entered, Tocld, 5 Wils.
the defendant became a bankrupt, and in the term following the ^70. IJSee as
plaintiff signed judgment, and had costs de incremento then taxed 590 1[' "" '
and allowed to him ; Lord Henley held these costs did not be-
come a debt till the judgment, and were connected therewith,
and that the plaintiff could not be permitted to prove the same
as a debt under the commission.

And where, in a case of assault and battery before bank- Walter v.
ruptcy, during the bankruptcy the plaintiff had a verdict with f wm 070
damages, but Iiad not judgment till after the certificate ; the uggg jj^. J^*^^,
court were of opinion the plaintiff could not come in under the Hill, 1 1 Ves.
commission, that it was not a provable debt, or a debt due at 646. Export*
the time of the bankruptcy. m^eS' 197

and ara>^ p. 590.H
II Where the creditor's claim may either be the ground of an
action of tort for damages, or of contract for a liquidated debt,
he may, if he please, waive the tort and claim on the contract,
and prove his debt ; but if he does not do so, he may proceed
on his claim in tort after the bankruptcy of the defendant, and

, the claim will not be barred.

' Thus, where the plaintiff delivered to the defendant a bill to Parker t.

' receive payment from the acceptor when due, and the defendant ^,?,"°"'

■ wrongfully discounted the bill and applied the money to his own ^j,5*i^"Ii„a ,co
purposes, and afterwards became bankrupt ; it was held, that the joim'son v.
bankruptcy was no bar to an action of trover for the bill; for Spiller,
though the plaintiff might have waived the tort^ and proved for j?^^"fg,.\^!^y^
the exact sum received by the defendant, he was not bound to ^^^^ Jg ""kJi^
do so. CO 5. Ex parte

Dobson, 7 Yin, Abr. 74.

A demand, arising on a breach of a covenant by the bankrupt !^^""jJ'''^^J^^,,,
to build certain houses in a given time, is only for unliquidated j^ ^^^^
damages, and cannot be proved.

Q q 4 Nor

600

BANKRUPT.

Nor can a claim on a covenant that the defendant had a good

Hammond t.

^TermR 614. ^'^^® *** * ^"S^te sold by him to the plaintiff. ||

Ex parte
Sneaps, 4th
March 1782,

Where one Sneaps was committed for a contempt in non-
payment of costs, wiiich were taxed subsequent to his bank-]
ruptcy, but the order for the taxation was made before it; upon
a motion for his discharge, upon the ground of the debt being'
discharged by his certificate, it became a question, whether^
this was to be considered as a debt arising anterior or posterior
to the bankruptcy ? It was argued, that all proceedings under
an order of court were to have relation in point of time to
that order; and consequently, that as the order was made
before the bankruptcy, the debt was to be considered as having,
originated in that order, and ought to be discharged by the
certificate.

The Lord Chancellor observed. It is generally true, that, where
several distinct acts are necessary for the completion of any busi-
ness, the completion refers to the inchoation. But the question
is, whether the making an order can be considered as such in-
choation ? And he said, he thought it clearly could not ; that it
might as well be said, the damages assessed in trespass are to
have reference to the trespass, which they certainly have not, for
they have their origin in the judgment. He took it to be clear,
that in all instances in the Court of Chancery, the taxation con-
stitutes the demand ; and as the taxation was subsequent to the
bankruptcy, the debt is therefore so, and consequently he could
not discharge the bankrupt.

Where an annuity is secured by a deed of covenant, the
growing payments are contingent ; and therefore an action may
be brought, notwithstanding the bankruptcy and certificate of the
covenantor,
ford V. Barber, 1 TermR. 86., and Hornby v. Houlditch, there cited. ||But by 6 G.4. c. 16.
$ 54. the annuity creditor may prove for the value of the annuity by whatever assurance the
annuity is secured, and whether there are or are not arrears due at the time of the bank-
ruptcy; and see 1 Deacon, 228.; and by ^55. (see post, 604.) the certificate is made a
discharge from all claims, either of the annuitant or the surety, in respect of the annuity; and
see jj 121. and ante, p. 586.1|

Cottrell V.
Hooke, Dougl.
93. As to cove-
nant to pay
rent, see Lud-

If a person lends a trader stock in the public funds, to be re-
placed as stock, without naming any particular time at which it
is to be invested; if the trader becomes bankrupt before he has
been required to replace the stock, it is a contingent debt, and '
cannot be proved. i

May 1792, S. P. Co. Bankrupt Laws, 245. ^Ex parte Day, 7 Ves.301. Ex parte Alcock, i
1 Rose, 523. 1 Ves. & B. 176. Ex parte King, 8 Ves. 534.|| I

Utterson v.
"Vernon,
5 TermR. 539.
and 4 Term R.
570. Ex parte
Bartlett, 19th

Ex parte
Barker, 9 Ves.
R.110.

Winter v.

Mousely,

2 Barn. & Aid.

«02. Sedvidc

5 Barn. & C.

360.

II So also a debt payable at a future uncertain period, as within
three months after the death of two obligors, or the survivor of
them, was held contingent, and could not be proved.

So also a bond conditioned to pay money to the executors of
the obligee, and interest on certain days, or within twenty days
next after demand, when no demand was made before the
bankruptcy.

{Y.) Of Creditors, and proof of Debts. fContingent Debts. ) 601

So also money due on a covenant to pay money on demand, Exparte
and no demand made before the commission issued, cannot be Campbell,

1 16 Ves. 248.

P^«^^^- Exparte

Mare, 8 Ves. 535.
So also where a warrant of attorney was given by a debtor to Staines v.
confess judgment against him, but judgment not to be entered P'^nck, sTerm
up till a contingency, which had not happened at the time of the othert t
bankruptcy; alitei; if the judgment had been entered imme- of debts not
diately, subject to a defeasance on a contingency, for then the proveable by

ludgment would form a dehitum in prdcsenti. reason of

•> ^ ' being contin-

gent, see Overseers of St. Martin v. Warren, 1 Barn. & Aid. 491. Miller v. Whittenbury
1 Camp. 428, Bannister v. Scott, 6 Terra R. 489. Ex parie Young, 3 Madd. R. 124. • and
see Co. Bankrupt Law, 221. <?/ seq.

But now, by 6 G. 4. c. 16. §56., it is enacted, " that if any sG. 4. c. is.

*' bankrupt shall, before the issuing of the commission, have con- ^^^y,

" tracted any debt payable upon a contingency which shall not ^i"^^ nm"' 1

" have happened before the issuing of such commission, the per- are debts

*' son with whom such debt has been contracted may, if he think merely con-

" fit, apply to the commissioners to set a value upon such debt ; ti"gent to be

" and the commissioners are hereby required to ascertain the Tu "L L

PI 1 • 1 "^ ^ 1 ^"^ commis-

" ascertained, and to receive dividends thereon ; or if such value section has
" shall not be so ascertained before the contingency shall have ^^^" held to
*' happened, then such person may, after such contingency navable°on a^*
** shall have happened, prove in respect of such debt, and contingency
** receive dividend with the other creditors, not disturbing any which hap-
*' former dividends ; provided that such person had not, when P'^"^'^ before
" such debt was contracted, notice of any act of bankruptcy by eg[.c^t*^ j Mont.
** such bankrupt committed." || & Mac. 293.

In collateral undertakings, if the party engaging to secure the Alsop v.
debt of another, himself becomes bankrupt before that debt is Price, Dougl.
payable by the principal, the creditor cannot prove under his Yf' f'^J""'^'
commission. 46o.^^|iThr'**

49 G. 3. c. 121. in no way affected these collateral undertakings of a bankrupt ; and although
it has been suggested that the 56tli section of the present statute will apply to them, see Eden's
B. L. 154., it is difficult to see how they can be considered as " debts contracted by the bank-
rupt payable on a contingency," within the language of that section, at least in cases where the
principal debtor has not made default before the bankruptcy of the surety. It is now fully
settled that such undertakings must be in writing, and express the consideration on the face of
them. Wain v. Walters, 5 East R. 10. Saunders v. Wakefield, 4 Barn. & Aid. 595.||

11 Thus, where the bankrupt had entered into a covenant that, HofTham v.
in case certain instalments of a debt should not be duly paid to Fourdrinier,
A. by a third party, he, the bankrupt, would pay them on de- •^'"""'e&S.
mand, it was held that the bankruptcy and certificate were no j?j'„ar/<-
discharge of this covenant as to any instalments growing due after Minet, 14 Ves.
the bankruptcy, since this liability could not be proved as an if9- Exparte
annuity on a valuation under the 17th section of 49 G. 3. c. 121. ; ^5'^^"'
nor was it a credit given to the bankrupt within the ninth
section of that act. — Qua:re, whether such a c^se would be
within the fifty-sixth section, supra.

A mere claim for unliquidated damages for breach of a con- Boomian r.

tract to accent and pay for eoods, which contract was not broken ^^' ^ ^*"''
^ ^ -^ * till &C. i«.i

602

BANKRUPT.

p. 605.||

and see At- *''^ ^^^^^ ^^^ bankruptcy of the vendee, is not a contingent debt

wood V. Par- proveable under this section. ||

tridge, 4 Bing. 209.

Hockley v. WJjeie a man becomes bail for another, it is considered as a

104-^^fs tl^ contingent debt ; and if the bail commit an act of bankruptcy be-

52d section ^°^^ ^^^^ judgment, it cannot be proved under the commission.

Accordingly, where the defendant, the 9th of May 1 734, was
bail on a writ of error, and, on the 25th of October ITS^, com-
mitted an act of bankruptcy, and after a commission obtained
his certificate ; on the I2i\\ November 1135, the judgment was
affirmed ; and, in an action of debt upon the recognizance, he
pleaded his discharge, and that the cause of action arose before
his bankruptcy ; Lord Hardncicke C. J., on the trial, held, that
the defendant was not discharged, according to the case of
Tully V. Sparkes, for this was but a contingent debt, for which
the plaintitF could not come in under the commission.

II Where a commission issued against bail to the sheriff, in an
action by original before the quarto die post of the return of the
writ, the bond was not forfeited at the bankruptcy, and conse-
quently was not proveable ; but if it issues after the quarto die
post, and the defendant has not appeared, it is proveable, since
the bond is in such case forfeited before the bankruptcy.

A bond by a trading member of parliament, pursuant to
4 G. 3. c. 33. was held not proveable when the obligor became
bankrupt before judgment in the action in which the bond was
obtained; for till the judgment the debt was contingent. |j

cases would now fall within the fifty-sixth section ?

Where a man undertakes to pay a sum of money for another^
his undertaking alone will not create a debt that he can prove
under a commission ; and if an act of bankruptcy intervenes be-
tween the undertaking and the actual payment, it can never be
proved, and the creditor can only resort to the bankrupt person-
ally. But if the party engaging to pay the debt of another is
taken in execution for that debt, his imprisonment is considered
as a payment and satisfaction of the debt, sufficient to give him
a right to prove under the commission.

Hockley, 2 Black. R. 840. Heskuyson v. Woodbridge, Dougl. 166. Taylor v. Mills, Cowp. 525
Kettier v. Raynes, in Cane. June 12. 1784. Co. Bankrupt Laws, 258. Paul v. Jones, 1 Term
R. 599.

This principle also extends to the case where one man is bail
for another, it having been determined that he cannot prove as a
creditor under a commission against the principal, till he has paid
the debt for which he became answerable; and that if the act of
bankruptcy committed by the principal is prior to the bail's
having paid the debt, he cannot prove it under the commission.
But the hardship of not admitting a surety to prove a debt
which he pays subsequent to the commission, is in some measure

^ ^^ ^^ relieved when the original creditor has made his proof before he

Brigham, 2sth calls upon the surety for payment; because the surety is holden
July \1Q2. Co. to have an equitable right to stand in the place of the original
Bankrupt creditor, and receive dividends upon his proof.

II And

Coulson V.
Hammon,
2 Barn. & C.
626.; and see
1 Burr. 4.36.
Cowper, 25.

Campbell v.
Jameson,
1 Bing. R. 520.
Qu. Whether
these two last

Taylor v.
Mills, Cowp
525. Crook-
shank V.
Thompson,
sStra. 1160.
5 Wils. 16.
Chilton V.
Whiffen,
3 Wils. 13.
Young V

Goddard v.
Vanderhey-
den, 3 Wils.
262.

Ex parte
Atkinson,
Baker, and
Darling, in re

Laws, 264.

(E) Of Creditors, and proof of Debts. (Sureties.)

603

II And now, by the 6 G. 4. c. 16. §52., (which re-enacts the 6G.4. ci6.
provision of 49 G. 3. c. 121. § 8.) it is enacted, " that any person $ 52. (a) This
" who, at the issuing the commission, shall be surety or liable for " '^^**
*' any debt of the bankrupt, or bail for the bankrupt, either to the
*' sheriff or to the action (a), if he shall have paid the debt, or any
*' part thereof, in discharge of the whole debt (although he may
** have paid the same after the commission issued), if the creditor
*' shall have proved his debt under the commission, shall be en-
*' titled to stand in the place of such creditor, as to the dividends,
*' and all other rights under the said commission which such cre-
*' ditor possessed or would be entitled to in respect of such proof;
" or if the creditor shall not have proved under the commission,
** such surety, or person liable, or bail, shall be entitled to prove
** his demand in respect of such payment, as a debt under the
" commission, not disturbing the former dividends, and may re-
" ceive dividends with the other creditors, although he may have
*' become surety, liable, or bail as aforesaid, after an act of bank-
*' ruptcy committed by such bankrupt ; provided that such person
" had not, when he became such surety or bail, or so liable as
*' aforesaid, notice of any act of bankruptcy by such bankrupt
" committed."

It had been holden, that neither bail to the sheriff nor bail Hewes v.
above were within the operation of 49 G. 3. c. 121. $8., and, Mott, 6 Taunt,
consequently, such bail paying the debt and costs subsequent ^^9. Newing-
to the commission were entitled to recover the amount from V^g.^' X^aIj
the bankrupt, notwithstanding his certificate; but they are both 493.
expressly included in the above enactment.

A person purchasing the debt of one entitled to prove may Ex parte
prove in his place under the statute. Lloyd,

1 Rose, 4.

Where two partners, on dissolving partnership with a third, Wood v.
assigned over to him all the effects, and took from him a covenant Dodgson,
to pay all the debts and indemnify the two against them ; and 2 Maule & S^
the continuing' partner becoming bankrupt, the others were ^^^'
obliged to pay some of the partnership debts after the bankruptcy,
it was held that they might prove under the commission, as
^* persons liable," within the 49 G. 3. c. 121.; for though the
partners were all jointly liable to the creditors at law, yet in
equity the continuing partner was solely liable, and the others
were his sureties.

Where a party accepted a bill as security for another, afler Stedman ▼.
which a commission issued against such other person, which was Martinnant,
superseded, and the acceptor then accepted a second bill for the ^^ ^'^^^ '**7.
amount of the former, with the addition of interest and stamp,
and a subsequent commission issued, after which the second bill
was paid, it was held, that the second bill was only a continu-
ation of the original suretysljip, and consequently within the
statute. Had it been a new suretyship, the debt could not have
been proved, since it was contracted after a commission issued
and superseded, which, by the 49 G. 3., is declared notice of
the bankrupt's insolvency. — Note. The words in the present

act

604 BANKRUPT.

act are merely " notice of an act of hanknijptcy by such bank-
rupt committed."
Soutten V. The statute only applies to cases of a payment of the ^^sohole

Soutten, deht^ or of a part in discharge of the "iSohole^ and not to a payment

^52^"^" ' ^^ ^ P^'^*' ^^ discharge of the personal liability of the surety.
Westcott V. A surety in a bond to the crown conditioned for the bank-

Hodges, rupt's accounting, as a subdistributor of stamps, for all stamped

5Barn. & A. vellum, S^'c. received by him, is within the statute; and having,
after the bankrupt had obtained his certificate,' paid a sum of
money to the crown on the bond, may prove it under the
commission.
M'Doueall v. ^"^ order to make a case of suretyship within the statute, the
Paton, debt of the bankrupt must be' a debt actually due at the time

8 Taunt. 584.; of the commission, and not growing: due afterwards: therefore
anosee w eisn ^j^gre A. was surety for B. that he should perform certain articles
3 Barn. & A. of agreement, by which an annual rent was payable by -B., and
187. Ex parte rent became due under the agreement fl/?cr the bankruptcy of J5.,
Serjeant, which was paid by A., it was held that this payment was not a

Tn k F ^^J ^^^ proveable by A. within the statute, and consequently the
6 Binff. 350. ' certificate was no bar to his suing the bankrupt for the money.
Qu. Whether this case would now be affected by the 56th section of the 6 G. 4. c. 16. which
enables contingent debts to be proved on a valuation. See 1 Deacon, p. 295. notC.

Ex parte With respect to the extent of the surety's proof^ it is settled,

Brooke, that where the creditor has a distinct debt beyond that for which

sRose, 3M. the surety is liable, the surety is entitled to the dividend on the

f /V!,-.^f- debt for which he was surety, though this diminishes the cre-
parte 1 urner, , t • i i , . ,. .*' , , '='

3 Ves. 345. ditor s dividends on his distinct debt.

Ex parte Rushworth, 10 Ves. 409. Paley v. Field, 12 Ves. 455.

Welsh V. A surety in an annuity deed was held not within the pro-

4 Maule & S ^^sio"s of 49 G. 3. c. 121. ; but the 55th section of the 6 G. 4.
332. Flanagan C- 1 6. has provided for this case.

V. Watkins, 3 Barn. & A. 186.

$ 65. By ^ 55. <« it shall not be lawful for any person entitled to

" any annuity granted by any bankrupt to sue any person who
" may be collateral surety for the same, until such annuitant shall
" have proved under the commission for the value of such an-
*' nuity, afnd for the arrears thereof; and if such surety, after such
" proof, pay the amount proved as aforesaid, he shall be thereby
" discharged from all claims in respect of such annuity ; and if
See 1 Deacon " ^^^ surety shall not (before any payment of the said annuity
232.; and see " subsequent to the bankruptcy shall have become due), pay the
ante, p. 586. « sum SO proved as aforesaid, he may be sued for the accruing
" payments, until such annuitant shall have paid or satisfied the
** amount so proved, with interest thereon at the rate of four per
" cent, per annum, from the time of notice of such proof and of the
*' amount thereof being given to such surety ; and after such
** payment or satisfaction such surety shall stand in the place of
*' such annuitant, in respect of such proof as aforesaid, to the
" amount so paid or satisfied as aforesaid by such surety ; and the
** certificate of the bankrupt shall be a discharge to him from all

" claims'

(E) Of Creditors, and proof of Debts. (Usurious Debt.) Q05

" claims of such annuitant or of such surety, in respect of such
" annuity; provided that such surety shall be entitled to credit in
*' account with such annuitant for any dividends received by such
*' annuitant under the commission, before such surety shall have
*' fully paid or satisfied the amount so proved as aforesaid." jj

Where the contingency, upon which money is made payable Ex parte Hill,
to a wife, is the bankruptcy or insolvency of the husband, such debt Co. Bankrupt
cannot be proved under the commission, ||since such debt is not ^*"'^» ^^°*
only contingent but also a fraud upon the bankrupt laws.|| Cooke' 8 Ves

553. Higinbotham v. Holme, 19 Ves. 88. In re Murphy, 1 Scho. & Lef. 44. But the wife's
own fortune may be settled on the husband until he fails, and then to her separate use.
Lockyer v. Savage, 2 Stra. 947. ||/« re Meagher, 1 Scho. & Lef. 179. Ex parte Hinton,
14 Ves. 598. Ex parte Young, 3 Madd. 124.H

Though it be established agreeably to the general rule (a), that («) Ex parte
a wife shall not come in as a creditor on a mere contingent pro- Caswell, 2 P.
vision, yet if the assignees go into equity to enforce the per- jjarle Jefferie^
formance of a trust; as they require equity they shall be obliged vin. Abr. tit. '
to do equity, and secure the settlement to her. One Blanchard, Creditor and
a cabinet-maker, married the sister of Calhford, who had 500/. Bankrupt, pi. 7
portion secured by land. Blanchard, on his marriage, gave a ki'^ D fv 254
bond to leave his intended wife, if she survived him, 500/. Ex parte
or a third of his estate, at her election. Blanchard became a Smith, Ex
bankrupt. A bill was brought by the assignees to have the 500/. parte Brown,
raised by a sale, and decreed accordingly ; but with this, that the ^^^^ 267*271
wife should come in as a creditor upon the 500/. bond, and what Holland v.
should be paid in respect thereof should be put out at interest, Calliford,
and received by the creditors, during the life of the husband ; and ^ ^^'■"- ^^2.
if the wife survived, then the money should be paid to her.

A debt contracted subsequent to the bankruptcy, though the 2 Vem. 94.

creditor have no notice of it, cannot be proved. 1)2 Bos. &

^ Pull, l.jl

||But now by § 47. of 6 G. 4. c. 16. (re-enacting 46 G. 3. eG. 4. c. 16.
c. 135. §2.) every person with whom a bankrupt has bondfde § 47.
contracted any debt or demand before the issuing the commis-
sion, shall, notwithstanding a prior act of bankruptcy, be ad-
mitted to prove ; provided such person had no notice at the time
of contracting such debt of any act of bankruptcy committed by
such bankrupt.

A party whose debt is contracted before the act of bankruptcy Ex parte
on which the commission issues, may prove, notwithstanding a ^?]^"'i*''- «
prior act of bankruptcy of which he has notice. || 479"" ®

A debt made void by statute ought not to be permitted to be Ex parte
proved, as a debt on a usurious contract ; and though the rule Skip, 2 Ves.
of the Court of Chancery is, upon a bill to be relieved against "j^g.
demands of usurious interest, not to make void the whole debt, Ijrtvmw'
but to make the party pay what is really due ; in a commission 3 Ves, & B.
of bankruptcy the assignees have a right to insist that the whole 14.||
is void, as an usurious contract. And unless the assignees and
creditors submit to pay what is really due, the Lord Chancellor
has not power to order it, and applications of this nature have
been frequently refused.

^. gave a note of hand, without consideration, payable to B. Ex parte '

two

G06

BANKRUPT.

Thompson,
1 Atk. 125.
||As to what
transactions
are usurious,
and what are
not, see tit.
Usury, Vol.
VIII.II

two months from the date, for 100/. ; B. indorsed it over to C,
allowing a discount of a guinea and a half, being at the rate of
91. percent. When the note became due, C. took a joint bond
from the drawer and indorsor for the 100/., though he paid only
98/. 85. Qd, The commissioners had admitted him as a creditor
under a commission against the drawer; but, finding out this
fact afterwards, they ordered his dividend to be stopped. The
Lord Chancellor, upon his petition, would not direct him to be
admitted to his dividend, but ordered an issue at law to try
whether the bond was usurious.
Lowe V. -^"^ whatever were the event of the issue directed by the court

Waller,Dougl. in this case, it should seem, if the contract was originally usuri-
716. 11(a) But ous, the note is void, and cannot be proved even in the hands of
c 93^ncfbili^' ^" innocent indorsee ; for, upon an action brought on it^ the de-
er note, fendant's plea of usury would be a complete bar. (a)
though drawn for an usurious consideration, shall be void in the hands of an indorsee for
valuable consideration, who has no notice of the usury.||

Ex parte i|A debt founded on an illegal contract cannot be proved. ||

Moggendge, [Thus a debt on goods sold to be sent to India, contrary to the

statute, cannot be proved unless it appears that the vendor did

not know of their destination.]

Co. B. L, 203.;
and see Ex
parte Daniels,
14 Ves. 191.

Ex parte Dys-
ter, 1 Meriv.
R. 174. 2 Rose,
245.

Ex parte
Bell, 1 Maule
& S. 751. A
seller abroad
of contraband
goods is en

II If a broker act ostensibly as broker, where he is in fact
a principal, this is fraudulent, and he cannot prove a debt
arising out of such a transaction. But a London broker may
prove for hand Jide debts due to himself, on transactions
in which he appeared as principal, notwithstanding his bond
and oath not to deal on his own account ; for there is no ex-
press statutory prohibition against so dealing.

Money advanced on an illegal contract can not be proved. Thus,
if one of several partners engage with A. B. in illegal insurances,
and advance partnership monies to A. B. on account of them,
and the partner die, his surviving partners (though innocent of the
transaction) cannot prove such monies as a debt against the

titled to prove ^^^^^ ^^ j^ ^ ^Y^o has become bankrupt.

unless he par- '■

iicipated in smuggling them into this country. 2 Glyn & J. 227. And as to illegal contracts,

see further, ante, tit. Assumpsit.

Ex parte Where the consideration of a contract is partly legal and

Mather, 3 Ves. partly illegal, though the security is void, yet, if the transac-

373. Ex parte ^^q^^ ^an be separated, so much of the debt as is legal may be

Bulmer, j ^ o -

13 Ves. 314. proved.

Grey v. Fowler, 1 H. Black. 462. Sed vide Scott v. Gillmore, 3 Taunt. 226.

Ex parte ^ ^^^^ barred by the statute of limitations cannot be proved.

Dewdney, 1 5 Ves. 498.

Ex parte ^°^ ^ *^^^^ ^^ insufficient consideration.

Gator, 1 Bro. C.C.267.

2 Scho. & Lef. But a voluntary bond may be proved, to be payable only out

of the surplus.

And a bond given for arrears of a voluntary bond, is a bond

for good consideration.il

[In

228.

Gilham v.
Lock, 9 Ves,
612.

(E) Of Creditors and Proof of Debts. (Expunging Proof, &c.) 60?

[In case of debts uncertain in point of liquidation, as between 3 WiU.avi.
two merchants in balancing accounts, the matter rests upon a Co. Bankrupt
claim, to ascertain the sum that was due at the time of the I^»w8, 319.
bankruptcy. So where a creditor cannot ascertain his debt with h 9 SseT*
certainty sufficient to enable him to swear to it, or is not able in
other respects satisfactorily to substantiate it ; or where the agent
of a creditor cannot produce his authority, and in many other
cases where there appears a probable foundation of a demand,
though not sufficiently made out, it is usual for the commissioners
to suffer a claim to be eiitered; but that will not entitle the party
to a dividend, which he cannot receive without completely
proving his debt. If a claim is not substantiated in reasonable
time, the commissioners may strike it out, and they generally do
so before a dividend is declared, unless sufficient reason is offered
to them for prolonging the time ; but the creditor is notwith-
standing afterwards at liberty to prove his debt and receive his
share upon any future dividends. However, in such cases
where there has not been gross laches, the Lord Chancellor
will make an order that such creditor shall be paid his propor-
tion of the dividend out of the money in the hands of the as-
signees, upon condition that it does not break in upon any
former dividend.]

II Before the late act, where a debt was improperly proved, it was
necessary to petition the Chancellor, the commissioners having
no power to expunge it. But by the sixtieth section, whenever it 6G.4. c. \q.
shall appear to the assignees, or to two or more creditors, each § 60.
having proved a debt of 20/. or upwards, that a debt proved is
not justly due in whole or in part, they may apply to the com-
missioners to have it expunged. The commissioners are em-
powered to summon the person having proved, together with any
one else whose evidence is material, and may upon the evidence
expunge it in whole or in part. Power is reserved to apply in
the first instance to the Lord Chancellor, or by way of appeal.

By the 6 G. 4. c. 1 6. § 99. it is enacted, " that any bankrupt or 6 G. 4. c. 16.
" other person who shall in any examination before the com- 9 ^^*
" missioners, or in any affidavit or deposition authorized or di-
** rected by the present or any act hereby repealed, wilfully and
" corruptly swear falsely, being convicted thereof, shall suffer the
" pains and penalties in force against wilful and corrupt perjury,
" and where any oath is hereby directed or required to be taken
" or administered, or affidavit to be made by or to any party,
" such party, if a Quaker, shall or may make solemn affirmation,
" and such Quaker shall incur such danger or penalty for refusing
" to make such solemn affirmation in such matters, when thereto
" required, as is hereby provided against persons refusing to be
" sworn, and all Quakers who shall in any such affirmation,
" knowingly and wilfully affirm falsely, shall suffer the same
" penalties as are provided against persons guilty of wilful and
" corrupt perjury, and all persons before whom oaths or
" affidavits are hereby directed to be made, are respectively

** empowered

608

BANKRUPT.

JEx parte Ben-
nett, 2 Atk. R.
527. JEx parte
Vere, 1 Rose,
281. Ex parte
Richardson,
14 Ves. 184.
Ex parte
Peele, 1 Rose,
435.; and see
1 Deacon, 298.

** empowered to administer the same, and also such solemn
" affirmation as aforesaid."

Where a creditor agrees to take a composition payable by-
instalments, and the debtor becomes bankrupt, one instalment
having been paid, and one remaining due and unpaid, the
creditor may retain the instalment paid, and prove for the
residue of the original debt. But where there has been no
default whatever before the bankruptcy, as where two instal-
ments have been paid and before the third becomes due the
bankruptcy intervenes, there the proof can only be for the out-
standing instalment. ||

6G.4.
§ 12.

C. 16.

6G.4. C.16.
$ 63.

(F) Of the Bankrupt's Estate and Effects, to which
the Commissioners or Assignees are entitled, when
it shall be said to be vested in them ; and herein of
fraudulent Dispositions by the Bankrupt.

II "DY 6 G. 4. c. 16. § 12. (in lieu of IS Eliz. c. 7. § 2.) the Lord
Chancellor shall have power upon petition in writing against
any trader having committed any act of bankruptcy, by any
creditor of such trader by commission under the great seal, to
appoint such persons as to him shall seem fit, who shall have
full power and authority to take such order and direction with
the body of such bankrupt as thereinafter mentioned, as also
with all his lands, tenements, and hereditaments, both within
the realm and abroad, as well copy or customary hold as free-
hold, which he shall have in his own right before he became bank-
rupt, as also with all such interest in any such lands, Sfc. as such
bankrupt may lawfully depart with all, and with all his money,
fees, offices, annuities, goods, chattels, wares, merchandize, and
debts wheresoever they may be found, and to make sale thereof,
or otherwise order the same for satisfaction and payment of the
creditors of the said bankrupt.

And by §63. (in place of 1 Jac. 1. c. 15. §13., 5 G. 2.
c. 30. § 26.), the commissioners shall assign to the assignees
for the benefit of the creditors, all the present and future per-
sonal estate of such bankrupt, wheresoever found ; and all pro-
perty which he may purchase, or which may revert, descend,
be devised or bequeathed, or come to him before he shall have
obtained his certificate ; and the commissioners shall also assign
as aforesaid all debts due or to be due to the bankrupt, and
such assignment shall vest the property in such debts in such
assignees as fully as if the assurance whereby they are secured
had been made to such assignees ; and after such assignment,
neither the bankrupt nor any person claiming through or under
him shall have power to recover or release the same, neither
shall the same be attached as the debt of the bankrupt, according
to the custom of London or otherwise, but such assignees shall
have like remedy to recover the same as the bankrupt might
have had if he had not been bankrupt.

And

(F) Bankrupt's Estate vesting in Commissioners and Assigfiecs. 609

And by the 64th section (in lieu of 13 Eliz. c. 7. § 11. 5 G. 2. § 64.

c. 30. § 26.) the commissioners shall by deed indented and en- H^^^ clauses
rolled in any of his majesty's courts of record convey to the '^'^^^'^^"

.ire new.

assignees for the benefit of the creditors, all lands, ^c. * except As to copy-
copy or customaryhold in England^ Scotland, IrelaTid, or in any holds, see po«/,
of the dominions, plantations, or colonies belonging to his P-sii-JI The
majesty,* to which any bankrupt is entitled in any of such rates not by^*^"
lands, ^-c. and of which he might, according to the laws of the relation to the
several countries, dominions, plantations, or colonies, have dis- date so as to
posed, and all such lands, 4"^. as he shall purchase, or shall de- *° P"^^ ?" f ^
scend, be devised, revert to, or come to him before he shall pgrry v.
have obtained his certificate, and all deeds, papers, and writings Bowes, Vent,
respecting the same, and every such deed shall be valid against 360. Sir T.
the bankrupt, and against all persons claiming under him: ^ p^^'p^^f
♦Provided that where according to the laws of any such plant- na.S.C. jlNor
ations or colony such deed would require registration, enrol- does it operate
ment, or recording, the same shall be registered, enrolled, hy relation to
or recorded according to the laws of such plantation or |"eactof
colony; and no such deed shall invalidate the title of any pur- as to vest the
chaser for valuable consideration prior to such registration, en- freehold in
rolment, or recording, without notice that the commission has the assignees

issued.* ^"^ t'.'^'

time ; it re-
mains in the bankrupt till the conveyance. Doe v. Mitchell, 2 Maule & S. 446.; and see Bain-
bridge V. Pinhorn, Buck, 135.|1 [h.^ to future real estates there must be a new bargain and
sale. Ex parte Proudfoot, 1 Atk. 253.] ||Carleton v. Leighton, 3 Meriv. R. 667. Alillr of
personal estate. Kitchen v. Bartsch, 7 East, 5Z. Nias v. Adamson, 5 Barn. & A. 228.||

And by the 65th section (in place of 21 Jac. 1. c. 19. § 12.) § 65.

the commissioners, by deed indented and enrolled as aforesaid,
shall make sale for the benefit of the creditors of any lands, S)C.
situate either in England or Ireland., whereof the bankrupt is
seised of any estate tail in possession, reversion, or remainder,
and whereof no revei'sion or remainder is in the crown, the gift
or provision of the crown, and every such deed shall be good
against the said bankrupt, and the issue of his body, and against
all persons claiming under him after he became bankrupt, and
against all persons whom the said bankrupt by fine, common
recovery, or any other means, might cut off or debar from any
remainder, reversion, or other interest, in or out of any of the
said lands, 8^c.

And by the 66th section (in lieu of 5 G. 2. c. 30. § Qo. and § 66.

3 G. 4. c. 81. § 5.) the Lord Chancellor may upon petition order
any conveyance or assignment either of the real or personal
estate of the bankrupt, made either to assignees appointed by
the commissioners or chosen by the creditors, and any en-
rolment thereof, to be vacated ; provided that no title of any
purchaser under any conveyance prior to such order be thereby
affected, and that no estate previously barred be thereby revived ;
and the Lord Chancellor may order the commissioners to
execute a new assignment or assignments of the debts and effects
unreceived and not disposed of by the then assignee or assignees,

Vol. L li r to

610

BANKRUPT:

Chan. Ca. 71.
2 Vern. 97.
S. C. cited.

Chan. Ca. 71.

2 Vern. 91.

.■5 Lev. 13, 14.
Keb. 11, 12.
722. 2 Sid. 69.
114. 176,
Vide Salk.109.
l!(a)Now 12
months. 6G.4.
c. 16. § 86 II

3 Lev. 59.
Skin. 22.
pi. 22.

Loflt.71.

Newland v.

, IP.

Wms. 92.
I'S^e Sloper v.
Fish, 2 Ves. &

to any other person or persons, to be chosen by the creditors ajj
afoi'esaid, or to execute a new conveyance ot" the real estate
unsold or not conveyed to such person or persons, and in such
manner, as the Lord Chancellor shall direct ; and if such ne\
assignment shall be ordered, the debts and personal estate of th«
bankrupt shall be thereby invested in such new assignees, am
it shall be lawful for them to sue for the same, and to discharge
any action or suit, or to give any acquittance for such debts as
effectually as the former assignees might have done ; and the
commissioners shall in the two London Gazettes next after the _
removal of such assignee or assignees, and such new appointf;!
ment as aforesaid, cause advertisements to be inserted giving
notice of such removal and appointment, and directing persons
indebted to the bankrupt's estate not to pay any debts to the
assignee or assignees so removed ; and if such new conveyance
as aforesaid shall be ordered as aforesaid, it shall be valid with-
out any conveyance from any former assignee or assignees, or
his or their heir or assigns, provided that the order so made
for vacating any bargain and sale be enrolled ; and any bargain
and sale to be executed in pursuance thereof shall be enrolled
in the same court as the first bargain and sale of the same
estate was enrolled. ||

In the construction of the former statutes the following opinions
have been holden.

If a lessor covenants with his lessee to renew his lease, and
the lessee becomes a bankrupt, the commissioners cannot assign
this covenant.

The commissioners may sell an equity of redemption.

If a man commits an act of bankruptcy, and after continue
in possession of his lands four years, and then sells, and aftdt
commits another act of bankruptcy, and two years after a com-
mission is taken out, Sj-c, this sale shall stand, for the act of
bankruptcy by which the sale is to be avoided must be done
within five years (a), before the commission sued out.

If A.^ having committed an act of bankruptcy, keeps on his
trade, and four years after binds his son apprentice with a gold-
smith, and pays with him 120/., being the usual sum in such
cases, and two years after a commission is taken out against A. :
this money is not assignable by the commissioners, being paid so
long before the commission, and without any fraud.

[A bankrupt having an estate in right of his wife, settled to
himself for life, with other intervening uses, remainder to him-
self in fee, with power to change the uses ; it was holden, that
the remainder in fee vested in the assignees, and his power of
revocation was gone.

The commissioners may assign lands in fee when the bankrupt
owes a debt by statute, if the statute is not sued and execut^l
before the bankruptcy. And the assignment shall prevail againf t
a second mortgagee who purchases the prior mortgage, if tljd

secoifl

(F) Bankrupt's Estate vesting in Commissioners a?id Assignees. Ol 1

second mortgage was made after a commission sued out, akliou'Tli B. 145. Sharp
the mortgagee had no notice of the commission. v. Rhoade,

2 Rose Ca.
I92.|| Hitchcox V. Sedgwick, 2 Vern. 156. Sedqiuere, If no commission had been sued, but
a secret act of bankruptcy committed ? Collet v. De Golls, Ca, temp. Talb. 69. ||This 'case
of Hitchcox V. Sedgwick was reversed in Bom. Proc. See Siigd. Vend, & P. 723. And that a
commission of bankrupt is not notice independent of statute, seeSowerby v. Brooks, 4 Barn.
& Aid. 523. And as to where a commibsion shall be notice, see 6 G. 4. c. 16. § 83.\\

If there be two joint-tenants, and the one becomes bankrupt Billing, m.
and dies, it is said, the bankrupt's part shall be sold, and that ^Jood. 89.
there shall be no survivorship ; because the bankrupt's moiety is
bound by the statutes ; and also the bankrupt had power to sell i Com. Dig.
the same in his life-time, and might depart with it. And, by the ^^^•
1 Jac. c. 15., the commissioners, after the bankrupt's death, may |lRe-enacted
proceed in execution, in and upon the commission for and con- |^'m" *^" ^®*
cerning the offender's lands, tenements, 4'^«j hi such sort as if ^ '"
the offender had been living ; which they cannot do if the sur-
vivorship is allovi^ed to take place.

Estates tail. — If a mortgage is made by a bankrupt tenant Beck v. Welsh,
in tail, without suffering a recovery, the assignees shall take i!^ ^'p^^'
advantage of this defect, and hold the land after the death of c_i6. § 65.|i
the bankrupt clear of the mortgage.

But if the deed contains a covenant for further assurance, the Edwards v.

mortgagee will be entitled to retain his security against the ^pplebee,

r? 1 *i • • J t) 2Bro.Chan.

creditors under the commission. p g52 Pv

Daubuz, 2 Bro. Chan. R.595. ||As a legal mortgage always contains such a covenant, the
distinction is not material. See Evans's Stat. v. 4. 570. note (l l).]]

II Where a remainderman in tail becomes bankrupt, the com- Jervis v. Tay-
missioners can only convey a base remainder in fee, and even !£"[',? ^^""
under a joint commission against the tenant for life and the re- ^ '
mainderman in tail, the assignees only take an estate during the
life of the tenant for life, and a base remainder in fee, determin-
able on the death of the tenant in tail, and failure of his issue. ||

Copyholds. — The lord is to be compounded with for the \\Vide6G.4.
admission, by the express provision of the statute; but if the c. 16. §69.||
commissioners sell a copyhold, and the vendee tenders to the lord Stone, 127.
a competent fine, which the lord refuses, and will not admit the
vendee, he may enter.

Where the commissioners sell the copyhold lands, the bargain Parker v.
and sale binds the copyholder, and bars his estate, and he is no Bleeke, Cro.
copyholder after the bargain and sale is enrolled; for the bar- jj^'^Yy®}
gainee, by the statute, is only barred to take the profits until ad- ^l^^^^j^ ' *"*"*
mittance, which is for the lord's benefit in respect of the fine due
to him ; and, when te bargainee is admitted by the lord, the
estate shall vest in him, and have reference to the bargain and
sale, and shall devest the claim of any intermediate estate. As if
the bankrupt dies between the bargain and sale and the admit-
tance of the bargainee, his wife (where the custom of the manor
is, that the wife of a copyholder dying te?ia7U shall be endowed)
shall not be endowed. And if the commissioners assign the bank-
rupt's copyhold estates to the general assignees, they are l« l^e
Considered as vendees; for if not, the assignee might continue , \"If I' '
■ Rr 2 ill •

(iJ^

BANKRUPT.

6 G. 4. C

§ 68, 69.

16.

in possession for years before he made a sale ; and yet, by an ex-
press provision in the act, he is restrained from receiving tha
profits till he has compounded with the lord ; and therefore the
assignee must, upon his admittance, pay a fine to the lord, and
upon sale of the estate, another fine must be paid : however this
inconvenience may be avoided by excepting copyholds out of the
deed of assignment of the bankrupt's estate, for the commissioners
may convey to a purchaser in the first instance ; and, by leaving
out the copyhold estate of a bankrupt in a temporary assignment,
the creditors will run no risk with regard to the crown, for an
extent will not effect it.

II But copyhold and customary lands are now, by the 64th sec-
tion of 6 G. 4. c. 16., expressly excepted out of the bargain and
sale by the commissioners to the assignees ; and by § 68. it
is enacted, that the commissioners shall have power, by inden-
ture enrolled, to make sale of such copyhold, <§-c. lands, and to
authorize any person, on their behalf, to surrender the same, for
the purpose of any purchaser being admitted thereto; and by
§ 69. such purchaser of the commissioners shall, before he
enter or take any profit of the copyhold, compound with the lord
for the fines, dues, and services; and the lord, at the next or some
subsequent court, shall grant unto the vendee, on request, the
copyhold for the estate sold to him, reserving the ancient rents
and services, and shall admit him tenant.

Copyholds, though mentioned expressly only in the 13 Eh'z.
c. 7., were decided in an early case to be within the purview of
all the bankrupt acts ; and, in accordance with this case, it was
lately decided that copyholds were within the provision of the
1 Jac. c. 15. § 17., that if the bankrupt died after the commission
sued forth and dealt in, the commissioners might proceed in
execution concerning the bankrupt's goods, lajids, Sfc. ; and the
court held, consequently, that a bargain and sale executed by the
commissioners after the death of the bankrupt, of copyhold lands
in which the bankrupt had a fee-simple conditional, was valid, and
passed the estate to the purchaser. — Note. By the 6 G. 4.
c. 16. § 26., it is provided, that if the bankrupt die after adjudica-
tion the commissioners may proceed in the commission as they
might have done if he were living. ||

Advowsons. — In case of a patron becoming a bankrupt, tlie
Law, (4th ed.) commissioners may sell the advowson of the living; but if the
p. 125. ||The church be void at the time of the sale, the vendee shall not pre-
77th sect, of ggjjj. |.Q ^j^g ypjjj turn, but the bankrupt himself, because the void
which enables ^"^'^ ®^ ^ church is not valuable.

assignees to execute all powerslegally vested in the bankrupt, expressly excepts the right of
nominating to a benefice. ||

Offices. — The commissioners may sell offices of inheritance,
and for terms of years ; but an office concerning the execution
of justice (and therefore within 5 Si, 6 Edw. 6. c. 16) cannot be
sold.

llSee as to stile of offices tit. Offices and Officers, {¥), Yol. VI.; and see Sir
W. Evans's note in his Statutes relating to Bankruptcy, 15.||

Jll

Crisp V. Pratt,

Cro- Car. 549.

Doe dem.

Spencer v.

Clarke,

5 Barn. & A.

458.

1 Burn's Eccl.

1 Atk. 213.
JEx parte
Lyons, Ambl.
89. Place of
Jew-broker
not saleable.

(F) Bankrupt's Estate vesting in Commissioners and Assignees. 6 1 3

On the other hand, a place that does not concern the ex- „ / B t-
ecution of justice, but only the police, may be sold. l^r f Atk.aio.

215. Ambl. 73. S. C. 3 Term R. 681. The pay of an oflTicer is not assignable. 4 Terra R.
248. 1 H. Black. R. 627. HCathcart v. Blackwood, Co. B.L.299. Qu. Whether he can
assign arrears already accrued. 5 Term R. 681. By the last insolvent debtor's act a portion
of his pay may be assigned for the benefit of his creditors, 7 G. 4. c. 57. § 29.\\

Rights, possibilities, and powers. — The commissioners Hidden v,
may assign a possibility of a right belonging to the bankrupt, \\ ilhamson,^
Jjiut it must be such as can be assigned or released (a), and dis- ^ ^^j^ "aV^*'
closed upon the last examination. (a) Moth v.

Froine, Ambl. 394.

II The expectancy of an heir at law during the life of his an- Carleton v.

.cestor, is not such an interest or possibility as passes to the ^'f .*^"'„
, . . r I 1 • ^ 1 • « ^ -f 3 Menv. R.

assignees under a commission or bankrupt against liim. rJut it ^-j^

,the estate descends to the bankrupt before his certificate, it will
pass to the assignees under the sixty-fourth section.

A policy of insurance effected by the bankrupt on his own Schondler v.
life, is a possibility of benefit to which his assignees are en- ^ Q^^xm. 487.
, titled, {h) (i) This case

appears to have been decided on the words '• possibility of profit," &c. in the 5 G. 2. c. 30.
$ 1. as to the bankrupt's disclosure of his effects. These words are not in the present act, but
the decision "would probably be the same.

It had been decided that a bankrupt having an absolute J'^*"'?^^-
•power of appointment, was not compellable to execute it in ^^\j^^ 270.
•iavour of his assignees. s^d vide

2 Barn. & A. 93.

Accordingly it is now enacted by the 6 G. 4. c. 16. § 77. (follow- 6 G. 4. c. I6.
ing the 3 G. 4^. c. 31. § 3.), that all powers vested in the bankrupt § '^^"
which he might legally execute for his own benefit (except the
right of nomination to a benefice), may be executed by the
assignees for the benefit of the creditors, in such manner as the
bankrupt might have executed the same.||

A commission of bankrupt vests all rights and all possibilities Ex parte
of the bankrupt in the assignees; in which respect it differs Brown, 2Ves.
'from an execution, which passes only what the sheriff seizes. J""'C7.
"Hence, two commissions of bankrupt for the same purpose
cannot subsist together : for the second will be superseded^
unless there be some special circumstances, as consent, fraud,
or laches in the creditors under the first. Indeetl, if the assig-
nees under the second will pay the creditors under the first
twenty shillings in the pound, and all the costs, in that case, the
first will be instantly superseded.

[The right to bring a real action passeth to the assignees by Smith v.

the usual words of the assignment. The assignees are entitled „"'"'"' ^ 5^

r I • ^ 1 X . I u xi I I * Black. 462.

to recover from the winner money lost at play by the bankrupt ijran,|on v.

before his bankruptcy, in an action of debt upon the statute of pnte, 2 Black.

9 Ann. c. l^. ; for the money is part of the bankrupt's estate; R- 308.

the statute gives an action to the party grieved, and therefore j? j^^jj."" y

vests an interest in him.] jun. 514.;

Hand see Carter v. Abbott, 1 Barn. & C. 4-n.||

R r 3 . II A right

6l4>

BANKRUPT.

Michel I V.
Hughes,
e Bing. 689.

GerrartI v.
Aylmer,
Palm. 505.

Com. Dig. tit.
Bankrupt (D),
16. Toulson
V. Grout,
2 Vern. 4.52.
Tudway v.
Bourne,
2 Burr. 718.
||See 1 9 Ves.
208. Price
219.11

Hesse v. Ste-
Tcnson, 3 Bos.
& Pull. 565.
and see

II A right of entry vested in the husband and wife in right of
the wife, passes to the assignees of the husband, on his becoming
bankrupt. II

The commissioners may assign an obligation taken in another's
name to the bankrupt's use.

an
So

They may sell an heriot, reliefs &c. due to the hanJcrupt.
a legacy given to the bankrupt before his bankruptcy,
where the certificate has been signed by the creditors and eon>j I
missioners, a legacy left to the bankrupt before the certificate ■
allowed by the Chancellor may be assigned. Many years may
intervene between the signing and the allowance of the cer-
tificate; and large effects may, in the mean time, come to the
bankrupt. And it is not like the relation of a bargain and sale,
or the surrender of a copyhold.

II The interest of the bankrupt in a patent passes to his assignees.
So also the right to publish a newspaper. Qucsre. Whether the
good will of a trade passes under the assignment (a).

Bloxam v. Elsee, 6 Barn. & C. 169. Longman v. Tripp, 2 New R. 67. (a) Crutwell v. Lje,
17 Ves. 335. 1 liose, 123.; and see Evans's Bankrupt Statutes, p. 19. note (10).

Chandler v. A claim for compensation, under an act of parliament, as pro-

Gardner^ cited pi-ietor of an ancient quay, has been decided by Lord Eldon to
be an interest in the bankrupt which passed to his assignees.

Where a trader had agreed to take persons into partnership
in consideration of money, payable by instalments, and he be-
came bankrupt five years after the partnership commenced, and
when only one instalment had become due ; it was held, that the
assignees were entitled to receive the remainmg instalments.

No action lies by the assignees for a mere personal tort to the
bankrupt, as assault, slander, Sfc, and in one old case it was held,
that the assignees were not entitled to money for which judg-
ment had been given in an action of slander brought by the,
bankrupt before the bankruptcy, and which had been levied by '
the sheriff; but it seems clear that by the judgment the damages
had become a debt, which must pass to the assignees ; and it
would seem that the assignees might recover it from the sheriff
Stat. 4. ^s money had and received. Qii. Whether the assignees can sue
for a tort injuring or deteriorating the bankrupt's pope-r/j/ .^
_, Property voluntarily conveyed by bankrupt. — By § 73.

6 <b. 4. c. 1 6. ^j. ^^^ g Q ^^ ^ J g (which is in place of the 1 Jac. 1 . c. 1 5. § 5.) it
(a) These is enacted, that if any bankrupt, beijig at the time insolvent (a), shaD

words are new. (except on the marriage any of his children, or for some valuable
This section consideration) have conveyed, assigned, or transferred to any of
his children, or any other person, any hereditaments, offices,
fees, annuities, leases, goods or chattels, or have delivered or
made over to any such person any bills, bonds, notes, or other
securities, or have transferred his debts to any other person oi"
persons, or into any other person's name, the commissioners
shall have power to sell and dispose of the same as aforesaid;
and every such sale shall be valid against the bankrupt and
such children and persons as aforesaid, and against all persons
claiming under him.[|

[_A. bein^

Akhurst v.
Jackson,
1 Swanst. R.
85. Wilson,
C.R. 47.

Cro.Car, 166.;
see 1 Deacon
587, and cases
there.

Evan

528. 1

IS not retros-
pective, 2 Sim.
360.

(F) Bankrupt* s Estate vesting in Commissioners and Assignees. 615

\_A. being about to renew a lease of an estate, at the expense Fryer v.
of a fine of 160/., borrowed of B. 80/. (of which B. himself B'-own, i Bro.
borrowed 50/.), and gave a promissory note to repay the money, "• '^* ^^°"
unless she should bequeath the estate to some or one of his
children; she afterwards devised the estate to B.'s daughter;
but, before the decease of A., B. had become a bankrupt. His
assignees claimed the 80/. or half of the estate, as being pur-
chased by the bankrupt for the advancement of a child under
^ 1 Jac. 1. c. 15. $ 5.; and, upon a hearing at the Rolls, obtained
a decree, which, upon an appeal to the Chancellor, was af-
firmed.]

But if A. purchases a copyhold to himself and wife for life, Cro. Car. 55a
remainder to his son and his heirs, and two years after he be- p^^P *"^
comes a trader, and four years after a debtor and bankrupt; 4.3s. y q "
there being no fraud in this case, nor any intent to deceive ere- Marsh. 37.S.C.
ditors, the interest of the wife and heirs of the bankrupt cannot Lilly v.Osbom,

be defeated by this act of bankruptcy. o^A^^'i'^?^^'

•' ^ •' &. P. If the

father conveys to his children, to secure them money given by their grandfather, if it can be

proved the father had effects of the grandfather's in his hands at the time of the execution of

the deed, it shall not be avoided. Mod. 76. But if there be no consideration, settlement on

his wife and children shall be construed a settlement on himself; and such an interest vests

in the assignees. Stile, 289. |l8 Ves. 195. 9Ves. 12.||

[In a case before the Court of Chancery it appeared, that the Walker v.
plaintiffs were assignees under a commission of bankruptcy """"rows,
against the father of the defendant, who, in 1739, conveyed all ng g G. 4.
his shop, goods, <§r. by bill of sale to the defendant his son, and c. 16. § 75.
in 1740 became bankrupt. In the year 1718, he, after viarriage, the trader
conveyed to trustees his real estate in consideration of five '""*' ^^ msol-
shillings, and other valuable considerations, in trust for himself time of the
for life, to his wife for life then to his eldest son, if he survived conveyance
his father and mother, and so to the next son, S^c. in order to

Lord Hard-'joicke said, as to the first part of the case, there defeat it.||
was not a foundation to set aside the assignment of the house-
hold goods as fraudulent, because it was made many months be-
fore the bankruptcy, and the consideration of the assignment
was proved, and also followed by the possession of the son.
And as to the second, the trustees under the deed must convey
to the assignees under the commission ; for it falls directly within
the clause 1 Jac. 1. c. 15. § 5.]

HA mere gift of money has been decided not to fall within the ^•'"''"'"'^
Stat. 1 Jac. 1. c. 15. § 5., which was held to be confined to things ^ Ve'J"g, '
the subject of conveyance. Kensington v.

Chantler, 2 Maule & S. 36. Nor is it within the seventy-third section of the new act. Abel
V. Daniell, 1 Moo. & Malk. 370.

Nor is a transfer of a sum to the credit of the trader's son at p^. „^tg
the father's bank.(a) skerratt,

2 Rose, 384. (a) The 73d section of the 6 G. 4. c. 16. which is in place of the 1 Jac. 1. c.I5.
$ 5. extends to a delivery of " bills, bonds, notes, or other securities."

But Stock purchased by a father in the name of his son and a nrown v- B«j-
trustee> has been held goods and chattels within the statute. JJ""'^'^^ ^^'"'''''

R r * Wilt's

6lG

BANKRUPT.

Wife's property. || — [The commissioners may assign a debt
or chose in action due to the wife of a bankrupt, and so it is of a
mortgage made to her dwn sola ; for the right to the debt is
plainly vested in the assignees, though the legal estate of the in-
heritance of the lands in mortgage continue in the wife.]

Miles V. Wil-
liams, I P.
Wins. 249.
Bosvil V.
Brander, 1 P.
Wms. 460.
Saddington v. Kinsman, 1 Bro, Chan. R. 44.

2 Vern. 96.
Vandenaker
and Des-
brough. If a
father agrees
to pay his son

But if A. devises 800^. to be invested in land for the benefit
of the wife of J. S. for her life, and afterwards for her children,
and the interest of the money in the mean time to go to such
persons as ought to receive the profits, and J. S. becomes a
bankrupt, the interest of this 800/. shall not be liable to the
15/. during his bankruptcy, this not being any trust created by the bankrupt,

life, and the j^^j. ^ maintenance intended the wife, and given to her by her
son becomes , . ' o .'

a bankrupt, relation.

equity will not enforce this agreement in favour of the creditors under the'commisbron of
bankruptcy. 2 Vern. 194. But if a father devises a legacy of 600/. payable to his so n aE
twenty-one, and the son obtains a decree for it, and a certain sum is reported due far
princijjal and interest, the commissioners may assign this legacy and benefit of the decree.
a Vern. 432.

[J. S. made his will, and devised his estate to his daughter for
her separate use, exclusive of her husband, to hold the same to
her and her heirs, and that her husband should not be tenant by
the curtesy, nor have these lands for his life, in case he survived
his wife, but that they should upon his wife's death, go to her
heirs. Soon after the testator di^d, and the husband became
a bankrupt. The commissioners assigned the lands devised,
upon which the wife brought her bill against the assignees, in
order to compel them to assign over the estate to her separate
use. The Master of the Rolls held it to be clear, that it was a
trust in the husband, and that there was no difference w here the
trust was created by the act of the party, and where by the act of
law. And decreed a conveyance for the separate use of the wife.

If the wife is entitled to a legacy which the husband has not
reduced into possession during his life, it seems it will not pass
by the commissioners' assignment.]

Bennet v.
Davies, 2 P.
Wms. 316.

Gayer v.
Wilkinson,
cited in 1 Bro.
Chan. R. 50.

IVIitford V.
!^litford,
9 Ves. 87.;
and see Horns-
by V. Lee,
2 Madd. K.
1 6. ; and Pur-
dew v, Jackson,
1 Russell R. 1.
where Sir
Thomas Phi-

II So also, where the wife of a bankrupt was entitled to a legacy
of stock left by a relation in trust for her, and her husband died
without having reduced the legacy into possession, it was held
by Sir William Grants after a luminous examination of the
cases, that the assignment under the bankruptcy was distin-
guishable from an assignment for valuable consideration to a
particular assignee, which might, perhaps, prevail over the wife's
right; but that, at all events, the assignment, by operation of
the bankrupt law, vested the chose in action in the assignees,
werM.R.held, -y^ ^.jjg same plight and condition in which the husband had
examination ^" interest in it; and consequently, that nothinor having been
that the wife's done to reduce it to possession during the bankrupt's life, the
right by survi- wife became entitled by survivorship as if there had been no
vorship pre- bankruptcy.
viiils also over *■ ''

the right of a particular assignee of the husband for valuable consideration. As to what acts
amount to a reduction by the husband, see tit. Baron and Feme, (C) jwsl.

And

( F) Ba?ikriipt's Estate vesting in Commissioners and Assignees. G 1 7

And so stock, standing in the wife's name, and which the Wildman t.
husband has done no act to reduce into possession, survives to ^^'l^lman,
the wife on the husband's death. 9 Ves. 174.

A legacy given to the bankrupt's wife is, at law, a legacy to Ranking v.
the bankrupt ; though in equity, subject to the claim of the wife ^ w"^'^'^'
for a provision for herself and children. But if she dies without ^ "^add.R.32.
asserting this claim, the legacy becomes the absolute property of
the husband, and passes to his assignees.

If a sum is due on bond to the wife of a trader, and is settled Wombwell
in trust by a settlement after marriage upon the wife, the settle- v. Lavor,
ment is void as against the assijrnees of the husband. ""' ^^°'

A legacy to a mariied woman, to and for her own use and Roberts v.

benefit, does not give her a separate estate. II ^'\'^^''? . „

^ i3 I II 5 Madd. R.

491. As to what words will give a separate estate to a married woman, see tit. Baron and

Femc^ j)ost; and see 1 Deacon, 377.

A man devises his lands wliich were in mortgage to be sold, Abr. Eq. 54.
and the surplus of the money to be paid his daughter; the p'-^.
daughter married a man who soon after became a bankrupt, and
the commissioners assigned this interest of the wife's ; the husband
died, and the assignees brought their bill against the wife and
trustees, to have the land sold and the surplus of the money
paid them : but the court would not assist in stripping the wife
(who was wholly unprovided for) of this interest, and dismissed
the bill.

A. puts out 1000/. at interest to the East hidia Company, Pr. Ch. is.
and takes bond for it in the name of J". S. his wife's relation: A. Qu- of this
becomes bankrupt: J. S. is summoned before the commissioners, case?
but before examination he tells the East India Company that
the money was not his, but that they should pay it to the person
that brought the bond : ^.'s wife brings the bond, and hath the
money paid her : equity would not relieve against it.

A legacy of 1000/. was given to one after the death of her Jacobson v.
mother, when she should attain the age of twenty-one years, and Williams,
the defendant was appointed trustee for the raising and paying ' ^fl- p"^.^'"'*
thereof out of certain lands : the legatee was drawn into an im- ^gj^ j^ q
provident match with one who soon afterwards became a bank- Gilb. Eq. R.
rupt, and the commissioners assigned all his effects, and gave 140. S. C.
him a certificate of his conformity : the assignees brought a bill
for this 1000/. against the trustee, who insisted that the assignees
could be in no better condition than the husband ; and that if he
were plaintiff he could not prevail without making a suitable
provision for the wife ; and that this legacy being liable to a
double contingency, viz. the death of the mother, and the lega-
tee's arriving at the age of twenty-one years, was not, at the time
of the bankruptcy, such an interest as could be assigned : and
the court held, that though both contingencies have since hap-
pened, yet those being since the assignment of the bankrupt's
estate, and since a certificate of his having conformed himself in
every thing to the acts, he was now discharged as a bankrupt;
and this portion could not pass without a new assignment, which

the

018 BANKRUPT.

the commissioners could not make, their commission being de-
termined ; and so dismissed the bill.
Row V. If a settlement is made before marriage, though without a

Davvson, portion, it will be good against the assignees; for marriage itself

Pope V. On- *^ ^ consideration, and it is equally good if made after marriage,
slow, 2 Vern. provided it be upon payment of money as a portion, or a new
286. Co. Bank- additional sum of money, or even an agreement to pay money,
rupt Laws, -^ ^^^ money be afterwards paid pursuant to the agreement.

Ex parte Cot' ^^ ^^ ^ person give a bond for a sum of money as a marriage
trell, Cowp. portion, and the marriage take effect, it is a good consideration
742. for the bond, and the assignees cannot be relieved against it.

Where the bankrupt himself, from the circumstances of the
Tyrrell V. case, would be considered as trustee for another, his assignees

.558. Ex parte ^^^^ ^^ looked upon in the same light.
Byas, 1 Atk. 124.

Ex parte If the wife of a bankrupt prior to her marriage was entitled to

Coysegame, j^ trust estate, the assignees of the husband are not entitled to
Laws 330. ^^^ property without making a settlement on the wife.
1 Atk. 192. S. C. Grey v. Kentish, 1 Atk. 280. Worrall v. Marlar, Bushnan v. Pell, 1 Cox's
P. Wins. 458. llBurdon V. Dean, 2 Ves, 607. Oswell v. Probert, Id. 680. Brown v. Clark,
sVes. 166. Freeman v. Parsley, Id. 421 . Lumb v. Milnes, 5 Ves. 507. Carr v. Taylor,
10 Ves. 574. } and see 1 Deacon 372. et seq.\\

Scriven v. ||The children are entitled to the provision of the wife upon

2Ed ^' 337 ^^^ death ; but they have no original title of their own to a pro-
Ambler 509. vision ; therefore, if the wife waive her equity, or die before it
Lloyd V. Wil- has attached, their claim is barred. And she may, at any time
1 Madd. 453. before the execution of the settlement, appear in court, and
L "d^ElT k ^^^^^ ^^^^ settlement, and bar the children. And it has been
10 Ves. 88. 9i'. held, that the equity of the wife attaches on the property at the
Rowe V. Jack- filing of the bill, (and not merely on a decree or reference to the
son, 2 Dick. master as to a settlement,) whether filed by the wife or by other
metz v^Hal- P^^'^ons ; and that if the wife die after the bill filed, the children
thin, 1 Glyn ^'^^ ^^ entitled to the provision.
& Ja. 64.

Green v. Otte, Most frequently the property is equally divided between the
2^0 i""/ ^^^^ ^^^ assignees; but the proportion depends on the circum-
Newham stances. The practice is to refer it to the master. ||

1 Glyn & Ja. 4o.

Milner v. But if the husband, or his general assignees, (who stand ex-

Colmer, 2 P. actly in the same situation,) can get possession of the wife's
Adams ^v^ property without the aid of equity, it seems doubtful whether
Pierce, 3* P. the court will interfere to assist the wife.
Wms. 11. Willats v. Cay, 2 Atk. 67. Jewson v. Moulson, 2 Atk. 420.
Seers v. Hind, [Leasehold estates. — The commissioners may assign a lease
1 Ves.jun. granted to the bankrupt, notwithstanding there be a proviso in
Cas Abr^ioo ^^ ^^^^ *^^^ lessee, his executors or administrators, shall not assigni
Philpot V. without the lessor's consent in writing. f

Hoare, Ambl. 480. |lDoe dem. Goodbehere v. Bevan, 3 Maule & S. 353.; and see Doe v-
Powell, 5 Barn. & C 508.|1

Doe dem. ||But where a lease is granted for a term of years, if the te7ianl

Lockwood V. shall so lotig occupy the lands, and tlie tenant becomes bankrupt,

and

(F) Bankrupt* s Estate vesting in Commissioners and Assignees. 619

and the assignees take possession and sell the lease, the term Clarke, 8 East,
is at an end by the tenant's ceasing to occupy, and the landlord ^^^'
may recover in ejectment.

And if the lease provide that the landlord shall enter on the Roe v. Gal-
tenant's committing an act of bankruptcy, such proviso is valid, H^"' ^ *'^'^'"j
and the landlord may enter. seeisVes.ses.

1 Swanst. 481. 3 Maule & 8.357!

A term of years in the bankrupt passes under the bargain and Bourdillon v.
sale to the assignees; but as the commissioners' assignment is to Walton, lEsp
be construed according to the spirit and intent of the bankrupt ^^'^f'n
laws, viz. that of providing for the payment of the creditors, the 233. Copeland
assignees are not bound to accept a term which may be a charge v. Stephens,
instead of a benefit to the estate; and therefore the operation of ^ Bam. &A.
the assignment, in vesting the term in the assignees, is held to
be suspended till they do some act signifying their acceptance of
the bankrupt's interest.

The mere advertising and putting the bankrupt's lease up to Turner v.
sale by the assignees, (not stating themselves to be the owners Richardson,
or possessors,) where no bidder offers, does not amount to an 7East, 335. ;
acceptance of the term by the assignees ; for it is their duty to ^^ ^^^
ascertain if the lease is beneficial, and this is only an experiment Bramah
for that purpose. 4 Camp. R.

368.

But if there is a purchaser, and a deposit paid, although the Hastings v.
contract go off, it has been held an acceptance. iH^^^r

And where the assignees had placed a board on the premises, Gibson v.
with a view of disposing of them, this was held an acceptance. 1 n"'^* & R

205.

The mere giving of a re-lease by the assignees to an under- Hill v. Dobie

tenant, does not amount to an acceptance of the original lease. 8 Taunt. 325.

But intermeddling with and managing the bankrupt's farm Thomas v.

amounts to such acceptance. Pemberton,

. , , , . /v. . 1 1 1 . 7 Taunt. 206.

And so also the assignees suiiering the bankrupts cows to

remain on the farm, though only for two days, and ordering ^ ^'
them to be milked there, is an acceptance by the assignees. 4 Camp. 368. •

and see Clark v. Hume, 1 Ry. & Moo. 207.

And any taking of actual possession by the assignees is an Hancock v.
acceptance, though they deliver up possession as soon as the "W^lsh,
bankrupt's goods on the premises are sold; for having once Hanson y"*^*
accepted the lease, they cannot afterwards renounce it. Stevenson,

1 Barn. & A. 303.

So where the bankrupt had a lease, and also a reversionary in- Page v. God-
terest in the premises, the sale by the assignees of " all his estate ^^"' ^ ^^"*'*
" and reversionary interest," was held an acceptance of the term.

Prior to the passing of the 49 G. 3. c. 121. § 19. the bankrupt Auriol v.'
remained liable to the landlord on the covenants in the lease, ^|''^^' ^^^*
notwithstanding the assignees had accepted the lease. By that 4 -pg^J^ R^^i.
statute the bankrupt was discharged from liability in respect of Copeland v.
the rents and covenants where the assignees had accepted the Stephens,

lease ;

620 BANKRUPT.

iBarn.&A. lease; but unless they accepted, the bankrupt still remained
593. But debt liable. By the present statute, 6 G. 4. c. 16., the bankrupt may

did not lie discharge himself from the rent and covenants, whether they
against the i t i i

bankrupt for accept or declnie the lease.

rent accrued after tlie commissioners' assignment, the privity of estate being destroyed. Wad-
ham V. Marlowe, 8 East, 314.

6G. 4, c. 16. By the seventy-fifth section, it is enacted, that any bankrupt

9 75. The entitled to any lease or agreement for lease, if the assignees

italics is new. accept the same, shall not be liable for rent after the commission,

or to be sued in respect of any subsequent nonobservance of the

covenants ; and if the assig?iees decline the same, shall not be

liable as aforesaid, in case he deliver up such lease or agreement

to the lessor- or such person agreeing to grant a lease, ixiithin

four-teen days after he shall have had notice that the assignees

shall have declined as aforesaid ,- and if the assignees shall not

(when required,) elect whether they will accept or decline, the

lessor or person agreeing, or any person entitled under them,

may apply by petition to the Lord Chancellor, who may order

them to elect and to deliver up such lease or agreement in case

they shall decline the same, and the possession of the premises;

or may make such other order as he shall think fit.

Ex parte Sut- ^ parol agreement, though there has been part performance,

ton, 2 Rose, is not within the intent of the statute.

86. As to the order to elect and its effect, see Buck, 83. 87. 1 Rose, 57. 445. 1 Madd. 76.

■Ex parte The Lord Chancellor's jurisdiction under the statute is only

Warwick, when the assignees refuse or neglect either to accept or decline ;

Buck, 326. and where they elect he cannot make an order ; and he cannot

Ex parte decide whether they have elected or not ; he can only send that

Clunes, • 1 • 1 I •

1 Madd. 76.; question to be tried by a jury.

and see 1 Mont, & Mac. 115., and see post, p. 664. as to the discharge from rents and covenants
under the certificate.

Ex parte The act only applies to cases between the lessor and lessee or

B ck^°39' assignee, and not to cases between the lessee and the assignee of
Taylor v. ' ^^ lease.
Young, 3 Bam. & A. 521.

Dommett v. Annuities, &c. vested in bankrupt with proviso against

Bedford, ALIENATION. — If an annuity is given by will for life, payable

6 Term R. 684. to the annuitant only, and with a proviso to cease in case of
3 Yes. 149. -jg being alienated, it ceases on the bankruptcy of the annuitant,
■yyyatt and the execution of the bargain and sale.

5 Madd. R. 482. ; and see Shee v. Halle, 13 Ves. 404.

Brandon v. g^t where dividends of stock were bequeathed to trustees to

I8'ves°429 ^^ P''^'^^ ^" '^' ^"^^ ^^^ °^" proper hands, and on his own
1 Rose 199. receipt, to the intent that they should not be assignable by way
of anticipation, it was decided by Lord Eldon, that on the bank-
ruptcy o^ A., his assignees were entitled to them, ther-e being no
limitation over in the event of A.'s bankruptcy.
Wilkinson v. So also where a testator by will gave the rents and profits of

Wilkinson, ^^ estate to his son for life, with a proviso, that if he should

Cooper R. . y ^ ^■r i • i i i

259.- and see assign or encumber the lire estate, so as not to be entitled to the
Holyland v. personal receipt and enjoyment thereof, it should from thence-
forth

(F) Bankrupt's Estate vesting in Commissioners and Assignees. Cr2i^

forth cease, determine, and be void to all intents, and should De Mendez,
devolve on the person next entitled under the limitations of his ? ^'env i84.
will; the son having become bankrupt. Sir W. Grant held, that there is a dC^
the bankruptcy being an assignment by operation of law, was position over
not within the provision against alienation according to the de- o" alienation,

cided cases in courts of law. {a) 11 ""^ ^^^ ^ords

' , are even

stronger than in the case of Cooper v. Wyatt, supra, with which case and with that of Dom-
mett V. Bedford, supra, it is irreconcilable. Cooper v. Wyatt was decided on the "round of
the testator's manifest intention, which would appear equally clear in this case. The words
in Brandon v. Robinson are less strong, and seem to point to a particular assignment by the son
in advance, rather than to any means whatever by which he might be deprived of the personal
receipt of the dividends.

Property abroad. — The commissioners here may sell the js^e^ig .. r

bankrupt's goods in Ireland, and the courts in Ireland will take tin^ham, in

notice of our laws so as to prevent a creditor, attaching property Cane, in Ire-

after the commission, from gaining a preference over the assignees ^5"'^' '^^'^

r ^u I 1 4. ^ov. 1 764.

of the bankrupt. i H. Black.

R. 132. As to the operntion of the bankrupt laws abroad, see the case of Cieve v. Mills,
at the Cockpit, 27 t\i Juli/ 1764; and the judgment of the court in the cases of Sill v.
Worswick, and Hunter v. Potts, infra.

So where the laws of Holland have, in like manner as a com- Solomons v.
mission of bankrupt here, taken the administration of the pro- Ross, i H.
perty, and vested it in persons who are called curators of desolate ?'','i*^*'' ''U*
estates, the Court of Chancery held, that they have, immediately ponihien i H
upon their appointment, a title to recover the debts due to the BI. 132. '
insolvent in this country, in preference to the particular creditor
seeking to attach those debts. The principle upon which these
decisions proceed is, that personal property is governed by that
law which governs the person of the owner.

If after an act of bankruptcy, but before the assignment, a Sill v. Wors-
creditor, resident in this country at the time of the bankruptcy, wick, 1 H.
and knowing of it, attach money of the bankrupt abroad, he is ^^^^^- ^94.
compellable to refund it to the assignees. But a debtor of the Pot'ts^Term
bankrupt before the bankruptcy, whose debt is afterwards bo7id R, isk In the
^de, and by regular process, attached by a creditor resident case of Sill v.

abroad at the time of the bankruptcy, is not liable to pay it over \^ orswick,
. ^ .1 • I J' I J the process

again to the assignees. abroad was

founded on an act done in England, and under the aid of the law o^ England ; a circumstance
on which that case immediately turned. The case of Hunter v. Potts was without that cir-
cumstance; and it was proposed to argue it on a writ of error before the twelve judges; but
no such argument hath taken place.

II So also, where one of several partners, creditors in Eiigland, Philips v.

of a bankrupt in England, went to America, and after an act of Hunter, 2H.

bankruptcy and commission issued against the bankrupt in Evfr- i "^w"',

o i^^o 3nu sec iVi&ck*

la7id, and with knowledge of such bankruptcy, attached for him- jntohh v.

self and partners a debt due to the bankrupt in the hands of the Ogilvie,
debtor in America, and obtained the money by judgment in the -iTerm R.
American court; it was held, by the Court of K. 13., that the ^^'•"*
partnership could not retain the money thus obtained in satis-
faction of the bankrupt's debt, but were liable to refund it in an
action for money had and received at the suit of the assignees.
And this judgment was affirmed in the Court of Exchequer-
chamber ; Eyre C. J. delivering his opinion to the contrary in a
profound and learned judgment.

And

6^2

Barker v.

Goodair,

11 Ves. 78.

Dutton V.

Morrison,

1 7 Ves. 1 93.

Sed vide Bris-

tow V. Potts,

11 Ves. 81. n.

and see post as to partners.

BANKRUPT.

And where one of several partners becomes bankrupt, Lord
Eldo7i has held, that his share in the joint effects is devested, and
becomes vested in the assignees from the act of bankruptcy ; and
consequently, the joint creditors cannot proceed, after such act of
bankruptc)*^, to attach a joint debt in the hands of the debtor of
the partnership by attachment in the Lord Mayor's Court; but
they will be restrained by a court of equity.

Brickwood v.

Miller,

5 Meriv. R.

279.

By sections

12 & 64 of

6G. 4. c. 16.

the bankrupt's

property in

the colonies

passes to the

assignees.

But in a subsequent case, where there were two firms originally
formed in the West Indies^ and the bankrupt was a member of
both, and three years before his bankruptcy established himself
in London, for the purpose of managing the English branch of
the business of the firms, and a creditor of the firms attached
their property in the West Indies for his debt, on a bill filed by
the assignees of the bankrupt partner against such creditor, for
an account of what he had received on the attachments, Sir
William Grant held, that he was entitled to retain to the extent
of what was due to him from the two firms, distinguishing this
from the cases of Barker v. Goodair and Dutton v. Morrison,
since there the commercial establishment was in this country
alone, and the attachments were laid in London ; but here the
partnerships were at least as much West Indian as English esta-
blishments, and it was in the West Indies the attachments were
laid. And his Honour added, that even in the less difficult case
of the attachment abroad of the property of a sole debtor residing
and becoming a bankrupt in this country, he doubted whether all
the reasoning of Lord Chief Justice Eyre in Hunter v. Potts (a),
had ever received a completely satisfactory answer.

But if the attachment is complete before the act of bankruptcy
takes place, the attaching creditor may retain the property against
the assignees ; and th"s although the act of bankruptcy occur on
the same day, provided it is subsequent to the time when, by
the law of the place, the property attached vests in the party
attaching.

The assignment under an English commission of bankrupt
vests in the assignees all the bankrupt's personal estate in Scot-
land, and indeed in all other countries, so as to do away the
effect of any subsequent diligence by any Scotch or other creditor.
Thus, where a commission issued against a bankrupt, part of
whose property consisted of shares of Carron stock, and a
creditor in Scotland subsequently arrested those shares ; it was
held by the Court of Session, and afterwards, on appeal, by the
House of Lords, that the title of the assignees was preferable,
effect of an English commission on the bankrupt's property in Scotland, and they will not grant
a sequestration against a person declared bankrupt under a valid English commission, since
such commission attaches on the property in Scotland as well as in England. See decision of
Court of Sessions, Bank of Scotland v. Cuthbert, 1 Rose, 462.

PerLd.Eldon, And although no authority is given by the bankrupt statutes
to compel the bankrupt to convey his Scotch real or heritable
property to the assignees, yet it has been sometimes made avail-
able by the creditors assigning their debts to an individual, who
proceeded against the heritage accordmg to Scotch law, or by

refusing

(a) Meaning
Philips V.
Hunter.

Ex parte
Dobree, Ex
parte Le Me-
surier, 8 Ves
82.

Bank of Scot-
land V. Cuth-
bert, 1 Rose,

462.

Selkrig v. Da-
vies, 2 Dow.
R. 230. And
the courts of
Scotland re-
cognise the

Ibid.

(F) Bcmkrupt*s Estate vesting in Commissioners and Assignees. 6^3

refusing to sign the bankrupt's certificate till he consented to
convey.

But by the twelfth section 6 G. 4-. c. 16. the commissioners are Qi«^re, What

to take order of the bankrupt's property, both within the realm ^'^*:'^^ this pro-

and abroad. And by the sixty-fourth section they are directed h^yg on'the

to convey to the assignees " all lands, tenements, and here- bankrupt's

" ditaments of the bankrupt in England, Scotland, Ireland, or real estate in

" any of the dominions, plantations, or colonies belonffing to his ?'^""«'"/- . It

« maiestv"!! is »ot by virtue

iiuijcMy. II of 3j,y statute

but by the universal principle of law that moveables follow the person, that the personal \)io-
perty in a foreign country vests in the assignees.

Property delivered voluntarily to prefer a particular Hinton's case
CREDITOR. — The delivery of property to a creditor in contempla- Freem. 270.
tion of immediate bankruptcy is considered as fraudulent, not- Rust v. Cooper,
withstanding the delivery is made in satisfaction of a bonajide debt, J?T^.' ^'^^'
for it disappoints the equality which the bankrupt laws aim at. Temple
4 Burr. 22.35. 1 Black. R. 441. Harman v. Fisher, Cowp. 117. IJSingleton v. Butler, 2 Bos.
& Pull. 283. Wilson v. Balfour, 2 Camp. 579.1|

II The delivery must be made in contemplation of bankruptcy, Hartshorn v.
and not of mere insolvency, or at least under such circumstances Slodden,2Bo8.
as render bankruptcy probable though not inevitable. Fid<'eon v *

Sharpe, 5 Taunt. 539. 1 Marsh. R. 196. Poland v. Glyn, 2 Dovv. & Ry. 310

And therefore a delivery of bills to a creditor in contemplation Wheelwright
of a deed of composition, and to induce him to accede to it, was ^- Jackson,
held not a preference in fraud of the bankrupt laws, so as to en- ^^^ g^g Moore
title the assignees to the bills on the composition going off and a v. Barthrup,
commission issuing. i Barn.&C. 5.

And a restoration by the bankrupt, though at the time of Gladstone
bankruptcy, of bills fraudulently obtained by him on a false '^'^'^'^^^^a,
representation from a creditor, has been held not a fraudulent 517""^
preference.

A bill of exchange is decided to come within the words " goods Gumming
and chattels" in the third section (see ante, p. 537.), so that the Z'nt^^'^,

p I 1 IT f Ml • * n 1 6 Bmg. 363.

fraudulent delivery or it will constitute an act o\ bankruptcy.

A ffift of monai has been held not within the seventy- third »^^^'^^"'^'!»
,. ^ M "^ •'1 Moo. & Ma.

section. II 57Q_

And if a trader, under an apprehension of legal process, de- Thompson v.

liver property to his creditor, or give him a power to receive Freeman,

it, such act is valid, notwithstanding the bankrupt knows himself nJ^^!^ ^^^^*
, , . , ^ ' ^ ^ De Tastet v.

to be insolvent. Carrol

I Stark. Ca. 88.||

So if a debtor, upon being pressed by his creditor, who knows Yeats v.

him to be insolvent, gives an order upon a person, having his y'"ove, iVes.

property, to pay out of the proceeds, it hath been determined "'

not to affect the payment.

II And where the delivery is obtained by the importunity of the Smith v.

creditor, though the bankrupt is not under terror of legal process, Payne, 6 Term

and though he contemplate bankruptcy, the delivery in general p l^-- ^^

is valid, since the circumstances shew it not to be voluntary. And ^ iHolt"

as terror of process is not necessary, it matters not that the debt Ca. 575. ; and

624

see the cases
collected in
note. Crossby
V, Crouch,

2 Camp. \65.
11 East, 256.
.E-T parte
Scudamore,

3 Ves. 85.
Bayley v. Bal-
lard, 1 Camp.
416.; and see
Churchill v.
Crease, 5 Bing.

BANKRUPT. -,

to secure which the creditor demands the goods, 4'C- is i^ot due
at the time. The circumstance of the proposal to make the
delivery coming from the creditor, and not the bankrupt, is also
held to rebut the inference of voluntariness ; and if the goods, <^f.
are delivered on the creditor's bona Jide importunity, secrecy in
the delivery is immaterial. Where the bankrupt unsolicited sent
checks to a creditor, but before his clerk delivered them the
creditor called for his debt, it was held that this intervening
demand prevented the delivery of the checks being a voluntary
preference.

177. Hunt V. Mortimer, 10 Barn. & C. 44.; and see 1 Barn. & Add. 145.

Thornton v.
Hargreaves,
7 East, 544. ;
and see Mor-
gan V. Horse-
man, 3 Taunt.

Prescot,
2 Atk. 245.
and Ex parte
Walker and
Woodbridge,

But where the trader under pressure of a creditor gave him a
bill of sale, of apparently the whole of his stock, and immediately
left business and became a bankrupt, the court held, that as this
transfer did not relieve the bankrupt from any present difficulty,
it must be considered as done voluntarily to prefer the creditor.]!

241. Cook V. Rogers, 7 Bing. R. 438. Most or all of the above cases of fraudulent preference
would now be held acts of bankruptcy under the words " make any fraudulent gift, delivery,
" or transfer of any of his goods or chattels with intent to defeat or delay his creditors."
6 G. 4. c. 16. § 3.; and see anthy p. 337. 614.

Wiseman V. STOPPAGE IN TRANSITU. — If A.^ being beyond sea, consigns

Vandeput, goods to J5., then in good circumstances in London, and before
rri<fe Snee v. ^^ goods arrive B. becomes a bankrupt, whereupon A. consigns
them to another, and the assignees under the commission pray
relief and a discovery, and a trial at law is directed, whether such
consignment vested a property in jB., and a verdict is found for
the assignees [a) ; yet equity will not oblige B. to come in as
after Trin. creditor, it being allowable by any means, short of actual
Term, 1755. violence, to prevent the goods from coming into the hands of
Co. Bankrupt ^j^g bankrupt or the assignees, (h)

Laws, 483. _ ^ .

(a) This right of the consignor to stop in transitu in case of bankruptcy, when the question is
merely between the consignor and consignee, is now established at law. Biskett v. Jenkins, cite d
in Cowp. 296. Solomons v. Nissen, 2 Term R. 674. Lickbarrow v. Mason, 2 Term R. 6".
But whether such right exist, as between the consignor and the assignee of the consignee,
under an indorsement of the bill of lading for a valuable consideration, is a point as yet
unsettled. The Court of King's Bench have negatived any such right. Lickbarrow v. Mason,
2 Term R. 63. Their judgment was reversed in the Exchequer-chamber, H. Black. 557. ;
but the House of Lords not thinking the evidence on the record (for the question was brought
forward on a demurrer to evidence) sufficient to maintain the plaintifTs action, awarded a
venire facias de novo. Dom. Proc. 14th June 1795.] IJAlthough the assignee of the bill,
of lading take it knowing that the goods are not paid for by the consignee, still if there is no
fraud the assignment prevents the vendor from stopping in transitu. Cuming v. Brown
9 East R. 506. But it is otherwise if the assignee knows that the consignee is insolvent.
Vertue v. Jewell, 4 Camp. Ca.31. And if the consignor take a receipt expressing that the
goods are received for and on his account, then no one is entitled to them who has not
this receipt, and the vendor may stop them jw transitu against any one not possessing it.
Craven v. Ryder, 1 Holt N. P. C. 100. ; and see further as to the right of stoppage in transitu,
Abbott on Shipping (5th ed.), partiii. c.ix. Eden's B. Law, 300. Cook's B. Law (8th ed.),
398. 1 Deacon, 449. The right existing in cases of mere insolvency of the vendee as well as of
bankruptcy, the law upon it is only incidentally connected with the title of " Bankruptcy."
Where the right exists the assignment by the commissioners cannot affect the property. jj
[(i) But if they once get into the hands of either the right is gone. Ellis v. Hunt, 5 Term R. 464.]

Atkin V. Bar-
wick, 1 Stra.

11 Goods sent but not accepted by the bankrupt &c. —
[Goods that have been delivered on a precedent consideration

cannot

(F) Banknipl^s Eslate vesting in Commissiojiers and Assignees. 6'25
cannot be assigned, though the acceptance be after the bank- , ,^»* j

-, '^ •-' * 16o. 10 Mod.

l""PtCy.] 432. s. c.

4 Burr. 2239. ||See observations of Lord Mansfield on this case, 4 Burr. 2259., and of Lord
Kent/on in Neat v. Ball, 2 East, 1 1 7.||

II So goods returned by a trader before an act of bankruptcy to Fidgeon v.

a creditor from whom he purchased them, though not received , a/P\ d
11 I- 11 1 1 1 • -11 /> 1 1 Marsh. K.

by the creditor, or agreed to be accepted by him, till after the igg.

act of bankruptcy, will not pass under the assignment to the
assignees.

But where a trader, on the receipt of goods, did not imme- Neate v. Ball,

diately exercise his option of returning them, but kept them for sEast R. 117.;

above a fortnight, though without opening them or entering them ^ Y'ldd

in his books, and then returned them when in a state of insolvency 5 TcrmR.

and on the eve of bankruptcy, though without fraudulent con- 211. Graffe v.

cealment, it was held that he ought to have exercised his power Greffuhle,

of restoring them immediately, and that they passed to his as- g^ ^jvJoor v.

signees. Bai-throp,

1 Barn. & C. 5. Barnes v. Freeland, 6 Term R. 80. Dixon v. Baldwin, 5 East, 175.

Goods bought by the bankrupt but not delivered, and in Bloxam v.

! which he has only a right of ^;oj9^r(y but not o^ possession, do ^^anders,

not pass to the assignees — as e. g. goods contracted for by the gu^'^and ^pL

bankrupt, but not paid for by him according to the custom of Bloxam v.

the trade, and remaining in the vendor's warehouse at the time Morley, Id.

of the bankruptcy. 9^^-

And goods ordered by a bankrupt to be made or manufactured Mucklow v.

for him, do not vest in him so as to pass to his assignees till Mangles,

they are finished and delivered, or till the maker has done some 1 Taunt. 51 8,;

act assenting to the property vesting in the bankrupt : and this 'i"" see Woods

although the bankrupt may have paid money on account equal 5 Barn. & A.

to the value of the work and materials. 942. Bishop v.

Crawshay, 3 Barn. & C. 415.

II Goods subject to li£N.|| — The assignment doth not devest Cowp. 125.
m equitable lien. By an equitable lien, however, we are not to ^s to what
anderstand a right attaching upon the property in whatsoever Persons are
bands it may be; for there can be no lien distinct from possession, s^^h lien see
i\mbl. 252- Cowp. 251. 1 Burr. 493. 2 Burr. 931. Pr. Ch.580. 4 Burr. 2214. 1 Black. R.
i54. 4 Term R. 123. 1 Atk. 235. 2 Cox's P. Wms. 367. Dougl. 97. Ej.- parlc Andvev/s,
Co. Bankrupt Laws, 515. iJSce the cases as to liciis collected. Cook's B. Law (8th edit.) 598.
pden's B. Law, 279. 1 Deacon's B. Law, 476.||

I II Executory CONTRACTS. II — The defendant on the marriage Moyses v.
bf his son settled lands on himself for life, remainder to his son 194 e^j"'
or life, SrC') and covenanted during his own life to pay his son auaire, Vande-
[51. per annum; the son became a bankrupt: the plaintiff as nankcr v. Des-
issignee brought a bill against the father, to have the benefit of brough,
his agreement, and to compel payment of the 1 5/. 7;^;- annum, pr k "' ^%u^
\^er Cur. — An assignee, under a statute of bankruptcy, is not Mayor of
ntitled to have the performance of an agreement made with Exeter,
he bankrupt; and it was so adjudged in the case of Drake v. iChan. Ca.71.
Vhe Manor of Exeter, where the court held, that if a lessor Ifff "'('L-
ovenants with his lessee and his assigns to renew his lease, g q c^^t^
Vol. I. S s and

6^26

BANKRUPT.

(a) Smith v.
Coffin, 2 H. B
444.
Brooke v.

and the lessee becomes a bankrupt, and the commissionor'

assign this covenant, the assignee cannot have any reUef again

the lessor.

llThis last case has been questioned (a), and the report of it in

Freem.p. 183. is the other way; and the general question whetheq-

assignees can compel a specific performance of an agreement to

Hewitt, 5 Ves. gia?it a lease to the bankrupt has only very lately been decided, (i)

255. Lord Bosshj7i refused to determine the point on demurrer in a ca*i

(6) With re- ^f complex circumstances, but did not say that the assignees' claiei

tracts bv*^"' " would be improper on a hearing, though he admitted that there

bankrupt to was much force in the distinction between such a case and that

purchase hmds, of enforcing an agreement for a purchase, where the assignees

there is no must first do equity by payinfj the purchase money, but here the
doubt assignees . , ^. i j j i j o ^i, , , ^ •

can enforce consideration was the covenants or the bankrupt.

performance of them ; see section 76 of the new act, and so also as to contracts by bankrupt
to sell lands, see Sharpe v. Rhoahde, 2 Rose, 192. Goodwin v. Lightbody, 1 Daniel, 153.

Weatherall v.

Geering,

12 Ves. 504.;

and see Flood

V. Finlay,

2 Ball &

Beatty, 9. ;

and see

4 Evans's Stat.

328. note.

1 Christ. B. L.
Powell V.
Lloyd,

2 Younge &
J. 372.

Chippendale
V. Tomlinson,
Trin. 25G.3.
B.R.

1 Atk. 255.

See ace. Ash-
ley V. Kell.
2Stra. 1207.

Webb V. Fox,
7 Term R.

Where a person who took the benefit of an insolvent act had
previously obtained an agreement for a lease, with a proviso
against assignments, on a bill filed by a party to whom the insol-
vent had assigned his interest against his assignees for a specific
performance, Sir Will. Grant dismissed the bill principally on tlie
ground of the proviso against assignments, saying that it was very
disputable whether the assignee of the insolvent himself could
enforce a performance, but not deciding the general question.
256. n. 1 Deacon, B. L. 368.

The Court of Exchequer have, however, lately held, that the
assignees are entitled to specific performance of an agreement
for a lease, they persojialli/ entering into those covenants which
the bankrupt, if solvent, would have been bound to enter into:
and the court said, that if injustice would be done by it, the
court would, in their discretion, refuse a decree.

Property acquired after bankruptcy. || — [Chippcndcle
brought an action of assumpsit for work and labour as an nt-
torney. The defendant pleaded, that the plaintiff was a bank-
rupt, and averred, that the commission was still in force. The
plaintiff replied, that the work and labour was done after the
commissioners' assignment, and for the necessary support andl
maintenance of himself and his family. Rejoinder, that ti>C|
plaintiff had not obtained his certificate ; and thereupon a dfr-
murrer. Lord Mansfield said, — The only question is. Whether ,
the assignees of a bankrupt are entitled to the profits arising frcm
his personal labour? The assignees cannot let out the bank-
rupt; they cannot contract for his labour. And Mr. Justice
Biiller observed, that when Lord Hardwicke said, that " all the
" bankrupt's future personal estate is affected by the assignment,
he evidently meant, that if the assignees claim it, the bankrupt
must deliver it up ; and so far the assignment affects it : but i
other person can have the same plea.]

II It is fully established that an uncertificated bankrupt ha ; j
right to property acquired subsequent to his bankruptcy agai

fG) Property in the reputed OwnersJiip of the Bankrupt. 627

all the world except his assignees, and may maintain actions in 39 1. Fowler
respect of such property, unless the assignees interpose. ^'iP*^^T'p

44. Cuniraing v. Roebuck, 1 Holt Ca. 172. Clark v. Calvert, 5 Moo. 96. Drayton v. Dale,
2 Barn. & C. 29.3.

But the bankrupt cannot retain any such property against the Kitchen v.
assignees. And accordingly, to an action by a bankrupt on a Barsch, 7 East,
promissory note, it was holden a good plea that the assignees ^•"•
had required the defendant to pay the money to them.

And so also where the assignees had, for a valuable consider- Nias v. Adam-
ation paid by a third party, left the bankrupt's furniture, Sfc. in ^°"' ^ "'"'"■ ^
his possession, and afterwards, notwithstanding such agreement, •^-'*
they seized it, it was held that the bankrupt could not maintain
trespass for such seizure, since he could not retain any property
against his assignees.

And where the seizure of an uncertificated bankrupt's effects Hull v. Pick-
was made by the creditors without authority from the assignees, ers^ill, i Bro.
a subsequent surrender of the assignees' interest to them was ^y 282. bee
held a sufficient ratification to justify the seizure. |j row 4 Taunt.

7 54., where it was held {Mansfield C. J. diss.), that a bankrupt might recover a reasonable com-
pensation from his assignees for work and labour done in carrying on business for the benefit
of the estate under the employment of the assignees.

il(G) Of Property passing to the Assignees as being in
the reputed Ownership of the Bankrupt.||

'l^HE enacting part of 21 Jac. 1. c. 19. § 11. has been held not Cowp. 233.

restrained by the preamble, but to extend to other persons'

goods, as well as those which were originally the bankrupt's

property.

II The preamble is altogether omitted in the late statute, which 6 G. 14. c. 16.

enacts that " if any bankrupt shall by consent and permission § J^* ,

• 1 iiG word ov IS

" of the true owner have in his possession, order, or disposition ;„ place of a«rf

" any goods or chattels whereof he was reputed owner, w in the former

" 'whereof he Iiad talccn upon him the sale, alteration, or dis- statute, and

" position as owner, the commissioners shall have power to sell ^ ,^ words or

" and dispose of the same for the benefit of the creditors under i^j^^^^ instead'

*' the commission. * Provided that nothing herein contained o? and take.

" shall invalidate or affect any transfer or assignment of any See 3 Taunt.

" ship or vessel, or any share thereof made as a security for any f^^' ,

" debt or debts, either by way of mortgage or assignment, duly j,jtgp jj,e * \^

j " registered according to the provisions of an act of parliament new. (a) The

! " made in the 4 Geo. 4. (a), intituled An Act for registering of gG.4.c.iio.
'' vessels." \\ is the registry

" act oow m

force.
One Mace kept a public house, had a licence, and said she Miice v. Ca-

I was married to Penrice. It was proved she went to the Excise- dell, Cowp.

'office, had his name entered in the books, with a note in the -^-v
margin, " married." Pairice had the licence, and continued in

■ possession of the house and goods from that time till he ab-
sconded and went to Pitnlico, which was an act of bankruptcy.
Mace, the plaintiff, first claimed the goods in question under

S s 2 a bill

6<2S BANKRUPT.

a bill of sale from Pcnrice^ but afterwards as her own origlna
property, and denied that Penrice and she were married. Upon
a question, Whether this was within the statute ? the court held
that it was. I

Bryson v. In another case, B)yso7i being possessed of a dyer's plant, solq.

Wylie, Hi!. it to Simpson for 165/. 16s. 6d. ; and Simpson gave Bryson two
Mi \ promissory notes dated the 19th day of January 1780, one fo^'

rather more the sum of 82/. 135. 6(/., payable on the 6th of Janna)y 1181,
fully, 1 Bos. & and the other for the sum of 82/. 1 3s., payable on the 6th
Pull.83.il January 1782. When the first note became due, Simpson could

not take it up, and Biyson offered to take back the plant, and
return the notes, and agreed that he would let him the plant
at the rent of 51. a year, upon the valuation amounting to
8/. 55. 6d. per ann., for the term of three years. To this pro-
posal Simpson very readily agreed, and a deed was accordingh'
executed ; by which it was agreed, that Bryson should let the
plant to Simpsoti, and that if he should make default in any of
the quarterly payments, or in the performance of any of the
covenants, then the term granted should cease, and Simpson
should deliver up the plant, Sfc, and it should be lawful for
Bryson to take inmiediate possession of the same. There was a
memorandum at the foot of the deed, that Simpson had put Brysui.
in full possession of the plant, by delivering to him one winch
in the name of the whole. On the 5th of July 1783, a com-
mission of bankruptcy issued against Simpson, and the messen-
ger took possession of the plant.
The bare leav- ^^^^^ question was. Whether this was within the stat. 21 Jac. 1.?
inif goods in The court held clearly that it was.

possession of the bankrupt without power to dispose, will not be within the statute. West ▼.
Skip, 1 V^es. 24.5. Ex parte Flyn, 1 Atk. 185. The sort of possession, disposition, &c. are, in
general, facts for the determination of a jury. Walker v. Burnell, Dougl. 303. Copeman v.
Gallant, 1 P. Wms. 314. Collins v. Forbes, 5 Term R. 316.

Horn V.Baker |1 So where a distillery with copper.s, vats, stills, i^r. was kt

9 East 11.215. on lease to traders who became bankrupt, it was holden that

the stills, Sj-c. which were fixed to the freehold did not pass to

the assignees, but that the vats and other things which were

movable did pass as being in the reputed ownership of the

bankrupts.

Storer v. But where a colliery was demised to the bankrupt, with

J^""*^'"' p engines, machinery, and implements, to be rendered up to the

ggg * * lessor at the expiration or other sooner determination of the

term ; it was held, that the tenant never had, under this demisel

the possession, order, or disposition of the engines, S^c. within

the meaning of the statute, but only a qualified right to Ufa

them.

Linaham v. If goods taken in execution are let by the execution cr :

Biggs, I Bos. ditor to the debtor, and he is suffered to remain in possessicii

& Pull. 82. Qf them till he becomes bankrupt, he must be considered ni

MeSter^ reputed owner, and they pass to his assignees, and the markiig

1 Barn. & C. the creditor's initials on the goods will not prevent the effect 'i

308. the statute.

Whe 3

Bartlett,
1 Bro. & B.
269. Gnrr v.
Rutton, iHolt,

527.

(G) Propertij in the reputed Ownership of the Bankrupt. 629

Where the goods have once been in the ostensible ownership i Bam. & C.
of the bankrupt, his possession of them at his bankruptcy is 312.
prima facie evidence of his being still the reputed owner; but this ^'"if'^.y*
evidence may be rebutted by circumstances. Where the bank-
rupt was not the original owner, the mere possession of the
goods will not be evidence of his being reputed owner. Evi-
dence of reputation of ownership is receivable in such case, and
also evidence of contrary reputation.

Furniture in a ready-furnished house will not it seems pass Per EyreC.J.
to the assignees of the occupier unless there are circumstances to i ^os. & Pull,
shew a reputed ownership. ^^"

So also goods let to hire, and which by custom are so let out. Per Lau-
as a stockintT-frame let to a working hosier in a manufacturing '''^^^ •'• , ^
district, will not it seems pass to the assignees. ^„j go per.

haps as to job horses. Ibid.

Wheie an officer in the East India Company's service, having Gordon y.
the privilege of shipping a certain quantity of goods from the t", " '^
East Indies to England, assigned it for a valuable consideration vXermR.Ws.;
to A. B. but the goods were shipped and brought to England and and see Col-
sold in the name of the officer, who became bankrupt before A. B. IJns v. I^jorbes,
could receive the proceeds of the goods ; it was held that the officer ^ ^^'" * ^^^'
being the reputed owner the proceeds passed to his assignees. ||

In mortgages of land or chattels real, the nondelivery of pos- Stephens v.
session does not amount to that species of fraud intended to be Sole, i Ves.
checked by the statute, the title deeds, and not the possession, ^52. Bourne v.
being the evidence of such species of property. Creditors, there- '^o"son, i Atk
fore, cannot be deceived and deluded by the possession of pro-
perty of that nature. But, where goods are pawned or mort-
gaged, it is very different; for possession and a power of dis-
posal of such property are the only evidences of ownership to
which the creditor can look : an assignment therefore of such
property, unaccompanied by possession, is fraudulent and void.

1 54. Hyal v.

Rowles, 1 Atk.

165. 1 Ves.

348. Bamford

V. Baron,

2 Term R. 594.

Edwards v.

Haben,

2 Term R.587.

Longman v.
Tripp, 2 New
R. 67. : and
see 2 Sim. &

II And accordingly where the printer and publisher of a news-
paper assigned over all his interest to a creditor as a security,
but continued to print and publish as before, and no affidavit
of the change of interest was delivered to the stamp office, and the Stu. 292.
printer became bankrupt ; the interest in the paper was held
to pass to his assignees. ||

l^ut, if the property cannot be delivered at the time of the |^.'*°^^!" ^*
contract, it vvill be sufficient if the mort«;affee has the documents : t^t ^^}^'

, . ,,. 1 ... 9'' , .. 1 Atk. 160.

and munmients delivered to him, in order to reduce it into pos- Ex parte
session. A mortgage, therefore, of a ship, or goods at sea, if Mathews,
the mortgagee has taken all methods in his power to get posses- ^f^' ^J^'
sion, such as the bill of sale, bills of lading, ^c- will be valid, j^" Hil. 24!
for otherwise no security could be made of such things at sea. q. g. jj, n.
But if the creditor were to suffer the ship to come back and go Co. Bankrupt
upon another voyage, the case would be very different. For ^^^^''**^^;
the delivery of the grand bill of sale will not be sufficient, if there ^jj,i"Jf°" ^*
is an opportunity of taking actual possession. 2Terin'R. 462.

iJMair v. Glennie, 4 Maule & S. 240.|| By the 26 G. 3. c. GO. § 17. the bill of sale must recite
the certificate of the registry of the ship, notwithstanding it be intended only as a security for

S s 3 "'^"^T

630

BANKRUPT.

Robinson v.
Macdonnell,
5 Maiile & S.
228. Hay V.
Fairburn,
2 Barn. & A.
193. Monk-
house V. Hay,
2 Bro. & B.

money lent, else it is void ; and being void the vendee, though he take possession of the sh p
immediately upon her return, cannot retain it against the assignees of the vendor. Rollestqa
V. Hibbert, 3 Term R. 406.

II Before the late registry act it was settled that where tl^e
owner of a ship assigned over his interest, and the transfer was
complete according to the registry acts, so that the assignee be-
came the registered owner, still if the original owner continued
to have the ship in his possession, order, and disposition by the
permission of the assignee, the property passed to the assignees
of the owner on his becoming bankrupt.
114. 8 Price, 256. Kirkley v. Hodgson, 1 Bam. & C. 588.

6 G.4. Clio. But now, by the registry act, 6 G. 4. c. 110. §46., it is pro-

y ^®' vided, that when any transfer of any ship or vessel, or of any

share thereof, shall have been made as a security for payment of

any debt, either by way of mortgage or of any assignment to a

trustee for the purpose of selling for the payment of any debt, if

such transfer shall have been duly registered according to the

provisions of the act, the interest of the mortgagee shall not be

affected by the bankruptcy of the mortgagor, notwithstanding the

ship was at the time in the possession, order, and disposition of

the bankrupt, and that he was the reputed owner. And sec

6 G. 4. c. 16. § 72. (pa. 627.)

Ex parte Before this statute it had been decided that ships registered

Burn, 1 Jac. & in the name of one partner, but in the order and disposition of

W. 378.; and ^j^g whole partnership, passed to the assignees of the joint estate :

and this decision is not affected by the above clause, which

applies only to cases of transfers by way of security or

mortgage.

see 4 Barn. &
C 120.

Mucklow V.

Mangles,
1 Taunt. 318
See this au-
thority
doubted,
5 Bing. 276, 277

Woods V.

Russell,

5 Barn. & A.

942. ; and see
Carruthers v.

Where a party contracted with a builder for a barge, and
agreed to pay him the value in advance, and the builder became
bankrupt before the barge was completed^ it was holden that
the purchaser had acquired no property in the barge, and that
it passed to the assignees of the builder. >

But where the price of the ship to be built was payable by
instalments, and the builder, after payment of some only of the
instalments, signed a certificate, according to the registry act, to
enable the purchaser to have the ship duly registered in his
Payne, 5 Bing. name, and the builder afterwards became bankrupt; it was held,
^^^' that the payment of the instalments vested the specific property

in the buyer, and that at all events the signing the certificate by
the builder was a consent that the property should pass to the
buyer. II

If a ship is in a foreign port, where the mortgagee might take
possession of her, and this be known to him, yet he is not
obliged to take possession until her arrival in Great Britain.
Co. Bankrupt Laws, 406.

Gillespy V. Where a share of a ship is mortgaged or pledged, the deliver-

652. Ex parte ^"S o^ the bill of sale of that share is sufficient, for the mortgagee
Standgroom, cannot in such case take actual possession of the ship.
2d Avg. 1790. Co. Bankrupt Laws, 410. 1 Ves. jun. 165.

Chosci

Ex parte
Batson, 8th
Aiiff. 1791.

(G) Property in the reputed Ownership of the Bankrupt. <i3ft

Choscs in action are holden within tlie statute, for although Falkener v.
they are only assignable in equity, equity will follow the law in ^^^i ^o. ^
such case. Bankrupt

Laws, 412.
1 Bro. Chan. R. 125. S.C. 2 Term R. 491. S. C. Rowe v. Dawson, l Ves.331.

II So government stock [a] is also within the statute, and bills (a) Brown v.
of exchange {b\ policies of insurance (c), a share in a news- ^'^ii"'?^'
paper [d), share in a public company, (e) Ex part f^'

Richardson, Buck, 480. ; and see 80th section of 6 G. 4. c. 16, (i) Hornhlower v. Proud,
i! Barn. & Aid.. "27. Ex parte Burton, l Giyn & Ja. 207. (c) Ex- parte North, Buck, 149.
5 Madd. 65. (d) Longman v. Tripp, 2 New R. 67. (e) Nelson v. London Association Company,
2 Sim. & Stu. 292.

But stock of a company seised of real estate is not a chattel Ex parte
within the statute. Vauxhall

Bridge Company, 1 Glyn &Ja. 101.

Nor are chattels fixed to the freehold. j| i Atk. lei.

Horn V. Baker, 9 East, 215.

If a bond is assigned, the bond must be delivered and notice Ryall v.
must be given to the debtor ; but in assigmiient of book-debts Rowles, i Ves.
notice alone is sufficient, because there can be no delivery, and ^^^- ^ "^^^^
such acts are equal to a delivery of goods, which are capable of ^jj^jg }„ actjon
being delivered. may be as-

signed without deed. Howell v. M'lvers, 4 Term R. 690.

II The assignment of a bond and delivery of it to the assignee, ;ex parte
are not sufficient to take the bond out of the operation of the Monro, Buck,
bankruptcy, unless notice is also given to the debtor. ^^'

And so also where, on the dissolution of a partnership, debts .£^*par/<? Bur-
due to it are assigned to the continuing partner, unless notice is ton, i Glyn <fc
given to the debtors, the debts still remain in the order and ^^' ^^^'
disposition of the partnership.

And so also as to assignment of a policy, unless notice is ^yilliams v.
given to the insurers. Thorp, 2 Sun.

^ 257.

And notice in the Gazette is not sufficient unless the debtors Ex parte Us-
have seen it.H borne, i Glyn

& Ja. .358.

Where a trader makes a settlement of personal property upon Haselinton v.
his marriage, for the separate use of his wife, and to be by her Gill, s Term
employed in a trade, his living with the wife, if he do not inter- *^- ^20. n.
meddle in the business, will not be a possession of the property \Yoo^"t^n
withm the statute of 21 Jac. 1.; for he hath not the order and ii,i(i_
disposition 'with the consent of the real o'wner.

II But goods, the property of the wife, assigned on the marriage Darby v.
to trustees on trust to permit her husband to enjoy them, on Smith, 8 Term
condition of his paying a sum of money by instalments to the "■• ^^*
trustees for the use of the wife's children by a former husband,
were held to fall within the statute, the trustees having permitted
them to remain in the husband's hands after default made in
the instalments, and until the day before his bankruptcy.

In the above case, the possession taken by the trustees on the
night before the bankruptcy, was considered by the court as no
alteration of the bankrupt's possession, so that he was still in
possession " at the time." This case is not to be considered as

S s 4- carrying

C)32

. BANKRUPT.

Jones V.
Dvvyer,

15 East, 21.;
and see ace.
Arbouin v.
Williams,
1 Ry. & Moo.
N. P. C. 72.
where the
transfer was

carrying the words of the statute, " at such time as they shall
become bankrupt" beyond their ordinary import.

Therefore, in a subsequent case, where the purchaser of goods
received from the seller an order on the wharfinger for delivery, but
suffered the goods to remain some months in the seller's name, and
the seller disposed of part, and on notice of the seller's insolvency,
and fiine days before his bankruptcy, the purchaser procured the
goods to be transferred to his name, it was held that there was
a complete transfer to the buyer before the bankruptcy, and

, . , consequently the assignees of the seller were not entitled to the

only the day j

before the goods.

bankruptcy. Ex parte '&xm\\\. Buck, 149. 3 Mad. 63. Robinson v. Macdonnell, 2 Barn. & A.134.

Manton v. In order to bring the case within the statute, the bankrupt

Aloore, must have the possession, order, and disposition of the goods.

i erm K. 67. 'pj^g bankrupt was an engineer employed by a canal company to
build locks, S^c. on the canal, and on his purchasing materials for
that purpose, they were laid on the company's premises, and the
company advanced money to the engineer, taking a bill of sale
of the goods, and a symbolical delivery from the engineer by a
halfpenny. The engineer afterwards becoming bankrupt, the
assignees were held not entitled to the goods, the sheriff having
previously seized them under an execution against the engineer
at the suit of the company ; for the best delivery of the goods was
made that the nature of the case admitted, the goods being on the
company's premises ; and the goods appearing to be the goods of
the company, no false credit could be obtained by the bankrupt.

Jones V. But if a trader sell goods lying on his whart^ and the buyer

Dwyer, tupra. neglect to have them trasferred into his name in the wharfinger's
books, they will pass to the trader's assignees under his bank-
ruptcy.

But the transfer in the wharfinger's books passes the posses-
sion to the vendee. And so also the delivery by the bankrupt of

R. 29. 7 Taunt, warrants for delivery of goods in dock warehouses duly indorsed
is such a transference of the possession to the party receiving the
warrants, that the goods do not remain in the possession, order,
and disposition of the bankrupt. In this case, an assent on the
part of the dock company to the transfer was proved ; but it
seems that possession is changed without such assent.

Lucas V. Dor-
rien, 1 Moo.

278. S.C.

Harman v.

Anderson,

2 Camp. 245.

Spear v. Tra-

vers, 4 Camp.

251.; and see

Greening v, Clark, 4 Barn. & C. 316. Winks v. Hassall, 9 Barn. & C. 376.

Knowles v.
Horsfall,
5 Barn. & A
134.

But where there is no warrant or order for delivery, the mere

marking the goods with the initials of the vendee will not alter

the possession so as to prevent the goods passing under the

statute to the vendor's assignees ; and this, notwithstanding the

sale may be notorious in the ■particular trade of the parties.

But if notice is given to the warehouse-keeper of the sale, it

seems the possession will be passed to the vendee.

Thwnck- Goods sold and remaining undistinguished in the vendor's

thwaite v. warehouse for re-sale by the vendee, under a rent to the vendor,

Cock,3Taunt. ^jH pass to the vendor's assignees under his bankruptcy, notwith-

FHnn v.^Ma-^ Standing a custom in the particular trade that goods shall so

thews, 1 Atk. remain after sale without any mark.

185.

But

(G) Property in the reputed Ownership of the Banknipt. 663

But wine purchased of a wine merchant, and remaining in Ex parte
the merchant's cellars, set apart in a particular bin, and marked Marrable,
with the purchaser's seal, and entered as his in the merchant's ^ ^'J'" ^ ^^•
books, is not in the order- and disposition of the merchant so as
to pass to his assignees.

Where a trader's shopman and another were the special Jackson v.
bailiffs in a warrant under an execution against the trader, and Irvin, 2 Camp,
they seized the goods and remained in possession till his bank- • ^^'
ruptcy ; it was held, that the possession of the servant was the
possession of the master, and that the assignees were conse-
quently entitled to the goods.

And so also where the warrant was directed to a regular Toussaint v.
bailiff, but the creditor ordered him not to sell, and the bailiff" Hartop, 1 Holt
left a man in possession, and the trader was suffered to carry "'^
on business and to have the visible ownership of the goods till
his bankruptcy.

So also, where the goods seized were left in possession of the Lingard v.

bankrupt, after the execution under a demise, at a rent from the Messiter,

creditor, and though the creditor's initials were marked on them, L„ "^' ,
,',,,*',. ' 308.; and see

they were held to pass to the assignees. 4 B. & C. 652.

It has been decided by the Court of Exchequer, that the share Coldwell v.
of a dormant partner in the stock in trade being in the pos- Gregory,
session of the acting partner does not pass to the assignees under 1 Price R. 119.
the bankruptcy of such acting partner; but this decision has Dvster'^sRo
been much questioned by Lord Eldon. Ca. 256.

And in a late case, where a dissolution of partnership took Ex parte
place some time prior to the bankruptcy of one of the partners, Enderby,
and the trade was carried on after the dissolution (as it had sBam.&C.
been before) by such partner only, and the whole stock and ^^^'
effects remained in his hands until and at the time of the
bankruptcy, by agreement with his former partner; it was de-
cided that the share of the other partner passed to the assignees
under the bankruptcy, as being in the possession, order, and
controul of the bankrupt.

As the possession must be with consent of the true owner, Viner v.
the property of infants, who are incapable of consenting, is not Cadell, 5 Esp.
within the statute. "' '

Where stock was mortgaged and was afterwards transferred Exparte Rich-
by the accountant general to the mortgagor without privity of ^g^""' Buck,
the mortgagee, it was held not to pass to the assignees of the
mortgagor on his bankruptcy.

But where a trustee contracted to sell and let the purchaser ^^^ ;>a/V<7
into possession, the property was held to pass under the pur- i^'!'^' Buck,
chaser's bankruptcy, the trustee being the " true owner" within
the meaning of ihe statute. ||

The assignment will not pass goods which the bankrupt hath Garret v.
possession of as factor, though he act upon a del credere com- mj p""'42
mission. (St'hedit.)"

Godfrey v. Fiirzo, I P. Wms. 185. Ex parte Dumas, 2 Ves. 586. 1 Atk. 25 2 Scrimshire v.
Alderton, 2 Stra. 1182. Escott v. Milward, Sittings after Mich. 1783. Co. Bankrupt Laws,
456, 457. llDelaunay v. Barker, 2 Stark. R. 539. Taylor v. Plumcr, J Manic & S. 562. ||

II But

G31 BANKRUPT.

Livesay v. ||But goods which the bankrupt has upon sale or return are

Hood, 2 Camp, jjqj Jjj jjjg possession as factor, and pass under the assignment.
GJbson V. ^^' where the trader received a parcel of goods on sale or

Bray, 8 Taunt, return the evening before his bankruptcy, and in fact never
R. 70'. 1 Moo. unpacked them, and his shop was shut next morning and never
519. S.C. re-opened, it was held that they did not pass to the assignees. 1| j
Ex varte "^"'^ upon the same principle, the assignment will not pass bills '

Dumas, 2Ves. or goods sent to a trader to be applied to a particular purpose. \
586. lAtk. 232. jBjparfeEmery, sVes. 674. Godfrey ▼. Furzo, 3P, Wms, 185. D'Aquilal
V. Lambert, Ambl. 599. Ex parte Clare, and Ex parte King, cited in Snee v. Prescott, 1 Atk.
250. Zink V. Waller, 2 Black. R. 1154. Tooke v. Hollingworth, 5 Term R. 215. JlBent v.
Puller, 5 Term R.494. Bolton v. Puller, l Bos. & Pull. 539.j|

p II And if bills not due, though indorsed, are paid by a customer

kins 9 East' ^° ^ banker, the property remains in the customer and the bills
R. 12. Thomp- do not fall within the statute, since the banker is considered as a
son V. Giles, factor to receive payment of the bills, unless, indeed, the banker
2 Barm & C. j,gjj shew an authority, either express or implied, from the cus-
Wakefield"''^ ^ tomer to treat them as cash.
Bank, 1 Rose, 238, 245. 19 Ves. 25.

2 Barn. & C. But hidorsement is considered prima facie evidence of the bills
^^n ^^'^^"'^ hemg discounted hy the hanker I and if discounted, the property
1 r/^&'m'oo ^^ changed, and they pass with the rest to the assignees.

271. 1 Rose, 243.

Ex parte Bills not due, and entered short, remain the property of the

bargeant, customer: ft/zV^/^ if paid in and treated as ca^/z.

1 Rose, 155. ^

Id. 255. 18 Ves. 229.

Thompson v. And if they are entered as biUs, they remain the property of
Giles, supra ; ^^ customer, although he may have permission to draw on the

5)Tlfl SOP

1 Deacon 432. bankers to the amount of them, if the cash-balance is in favour
etseq. of the customer at the bankruptcy. 1|

„ . The assignment will not pass goods which the bankrupt may

Jemmett be possessed of as executor or administrator.

5 Burr. 1569. Ex parte Ellis, 1 Atk. 101. Ex parte Marsh, 1 Atk. 158. But if a trader is
made executor and residuary legatee, and before his bankruptcy collects in enoughW the tes-
tator's effects to pay debts and particular legacies, and the remainder of the assets is uncol-
lected ; though the assignees in law would not be entitled to get it in, because the bankrupt
has it in outer droit as executor, yet the assignees under the commission, notwithstanding the
legal interest is not vested in them, may, by the aid of the Court of Chancery, get in the assets
in the name of the executor. Per Lord Harcourt, in Ex parte Butler, 1 Atk. 215. Ambl. 74.
S. C. As courts of law now take notice of a trust, the assignee in law would be entitled.
Winch V. Keeley, 1 Term R. 6 1 9. \^>\^.Hardwicke\ words, 1 Atk. 215. are, " the assignees would
not in law be entitled," &c., and not the assignees in law would not be entitled, which makes
the above passage clear. Winch v. Keeley decided, that the assignor of a bond might sue in
his own name for the benefit of the assignee notwithstanding his bankruptcy, since the court
would take notice that he was a trustee for the assignee. See Joy v. Campbell, 1 Scho.

6 C. 528.||

Fox V. Fisher llBut where the party entitled to take out administration neg-

3 Barn.& A. lects to do SO, and remains in possession of the goods for a num-
135. ber of years, and then becomes bankrupt, the goods will pass to

the assignees. II
Winch V. [The assignment will not pass a debt which the bankrupt hath

Keeley, iTerm previously assigned to another person; for in such case he is a

mere

(H) Of the Relation to the Act of Bankruptcy, &;c. 635

mere trustee, and the debts which are assignable by the statute R-619. yScott
are those which are for the benefit of the bankrupt.] y, Surman,

^ ^ -• Willes R. 402.

Carpenter v. Marnell, 3 Bos. & Pull. 40. Gladstone v. Hadwen, 1 Maule & S. 526. ; and see
79th sect, of 6G. 4. c. 16.||

11(H) Of the Relation to the Act of Bankruptcy, and
how far it is qualified.il

T^HE assignees have an interest in the bankrupt's estate from Sand. 239.

the very act of bankruptcy, so as to avoid all mesne acts done Sid. 327.
by the bankrupt during that time, and the issuing out of the Salk. 111.
commission ; and the privity of contract between the bankrupt P ' ^u- '^
^nd his creditors being from that time transferred to the holden that
assignees, they have the same right as an administrator, who has before an ac-
a property from the death of the intestate, and may declare ^^^^ assign-
generally ut de bonis suis propriis. Srupt^ has
8uch a property for which he may maintain an action. Salk. 108. If upon a capias ad satis-
faciendum the money is levied, and after the plaintiff becomes a bankrupt, and the money is
assigned before the return of the writ, this assignment is void; for being in the hands of the
sheriff it is quasi in custodiu tegis, and not the bankrupt's money before it is paid him. Cro.
Car. 166. 176. If the conusor, after the extent, and before the liberate, becomes a bankrupt,
and the goods are delivered upon the liberate, and a commission is after taken out, &c. they
cannot be sold ; for by the extent they were in custodid Icgis ; and it was not in the power of
the conusor by any subsequent act, to destroy the effect of the extent. Cro. Car. 148. Sir
W. Jones, 202. S. C. If between the act of bankruptcy and before assignment, the goods of
the bankrupt are seized and in the officer's hands for the debt of the king, it seems that these
goods cannot be assigned ; for the king's title and that of a subject's commencing at the same
time, the king shall be preferred; besides the king cannot come in as a creditor under
the statute. Salk. 102. pi. 2. 108. [2 Stra. 978. But he is bound by an actual assignment.
2 Show. 481.]

The crown is not bound by the acts relating to bankrupts, not Co. Bankrupt
being named in them ; therefore an extent served upon the pro- T'^^Tf' ^^®'
perty of the bankrupt will bind from the teste of the writ, and Halsev Sir
till actual assignment by the commissioners ; but the king is W, Jones R.
bound by an actual assignment, because the property is then 202. Rex v.

absolutely transferred to a third person. Pixley, Bunh.

^ * 202. Rex V.

Bewdley, in the Exchequer, July 1784. 2 Show. 480. Lechmere v. Thoroughgood, 3 Mod.
236. Comb. 123. Rorke V. Dayrell, 4 Term R. 408.

One became indebted to the crown, and a commission of Park. R. 126.
bankrupt was sued out against him, and an assignment made of 2 Show. 40.
his effects ; and an extent issued from the crown, tested the day l'^"* Whether
of the date of the assignment, and the crown was preferred. would notnow

enquire which was first, the execution of the assignment or the issuing the extent ? See as to
fraction of a day, 2 Barn. & A. 586. ; and see 3 Stark. 73. When an extent is apprehended
the commission should be sealed with all despatch, in order that a provisional assignment may
be executed to bar the crown process. Lord Eldon did not complain of being called up in
the middle of the night for this purpose. Wydown's case, 1 4 Ves. 88. As to extents in aid
and the restrictions now put upon them, see 57 G. 3. c. 117. 9 Price, 525. 647.; and see
7 G. 4. c. 30. § 1. 1 Deacon, 492.||

The land-tax money in the hands of collectors is a debt to the Brassey t.
king, but the warrant of the commissioners of the land-tax is not Dawson,
ecjual to an extent, so as to bind the goods from the date, but ^^'^^-^'^s.
imlil assignment the property is in the bankrupt, and the land-
tax

636 ^ BANKRUPT.

tax commissioners' warrant executed before the assignment will
create a lien upon such a seizure, therefore all the assignees'
right is to redeem the goods which are in the hands of the com-
missioners of the land-tax for that purpose.
Stacy v.Hulse ^ candle-maker, in arrear for the single duties, becoming
Dougl.395. bankrupt, and convicted for nonpayment after the assignment of
Attorney- his effects, the double duties are a lien upon the candles, utensils,

Creneral V. ^j^^j materials in the hands of his assignees, and they may be

benior, Kex v. ,. . , is ' j j

Fowler, Dougl. distramed.

400. iJSee Austen v. Whitehead, 6 Term R. 436. In re Day, 1 M'Clel. 584.1|

Barwell v. [ Where a trader commits an act of bankruptcy by lying in

Ward, I Atk. pj-json for two months, it relates to the first day of his surrender,

Leith 2 Term ^^ ^^ ^^ overreach all intermediate transactions.]

R. 141, ||But under the new act 6 G. 4. c. 16. § 5. the act of bankruptcy does not relate to

the first day of the imprisonment. Moser v. Newman, 6 Bing. 556. Higgins v. M'Adam,

3 Young & J. 1.11

Clarke v. Where the act of bankruptcy was committed by the bank-

Ryal, 1 Black, rupt's lying in gaol two months, and in the interval, before it
R. 642, ^j^g completed, the sheriff paid money which he had levied

under an execution against the bankrupt to the plaintiff in the
action, the court would not assist the assignees upon motion.
Coles V. Ro- II Where a payment is made by a debtor to a trader in prison,

bins, 3 Camp, if the party has notice of that fact, and if the requisite imprison-
^^^ h th nient is afterwards completed, the payment is not protected, but
new act such ^^ ^^ protected if the debtor had no notice of the imprisonment,
payment would be good, as being made before the act of bankruptcy ; see Moser v. Newman,
suprh.

Thompson v. A payment by a bankrupt in prison is protected where the
R^^^^R pa^ty receiving it gives up to the bankrupt papers on which he
' had a lien.
Thomas v.De- 'phg courts will notice a fraction of a day, and therefore, where
aT^s'ss -and ^" execution is levied on a trader's goods and on the same day
see 3 Stark. at a subsequent hour he goes to prison and remains in prison two
Ca. 73. months, the act of bankruptcy does not over-reach the execution.
Ex parte The I'elation to the act of bankruptcy cannot be carried back
Birkett, beyond the accruing of the petitioning creditor's debt, as the
See'e G 4 ' S'Ssignees cannot avail themselves of an act of bankruptcy pre-
c. 16. § 18. cedent to it without -destroying their title as assignees. ||
(a) 1 Jac. 1. [As this relation to the act of bankruptcy occasionally induceth
C.15. §14. very great hardship upon parties, it meeteth with but little en-
(5) 21 Jac. 1. couragement from the courts. The legislature too hath inter-
fc) igG. 2. posed, and provided that it shall not extend to the prejudice of
C.32. § 1. any debtor of the bankrupt (a), who pays his debt to the bank-
There is no rupt truly and honajide before he shall understand or know that
diiFerence j^g jg become a bankrupt ; or to purchasers for valuable consi-
actual pay- deration {b\ unless the commission shall be sued out within five
ment of money years after the act of bankruptcy ; or to payments for goods or
in satisfaction bills of exchange honajide made by the bankrupt in the course

ofa debt, and of trade (c), without the creditor's knowing that he is become
intlorsin*' nills \ * •* o

of exchaliTe bankrupt, or in insolvent circumstances.]

provided there be no notice, and the money be received on them before the commission- of

bankruptcy

(H) Of the Relatmi to the Act of Bankruptci/, S;c. 63?

bankruptcy issues. Hawkins v. Penfold, 2 Ves. 550. IJThe giving of goods, or a bill of ex-
change in payment fcjr goods, is a payment protected, though the bill is paid after notice of
an act of bankruptcy. Wilkins v. Casey, 7TermR. 711. So also a bond fide payment for
goods purchased after a secret act of bankruptcy. Cash v. Young, 2 Barn, & C. 413. ; but an
advance of money by a factor on security of goods is not a payment protected. Copeland v.
Stein, 8 Term R. 199. ; nor where goods are taken of a trader on sale and return after a secret
act of bankrui)tcy, can they be retained on the ground of a set-ofFof a prior debt due from the
bankrupt to the party taking them. Hurst v. Gwennap, 2 Stark. Ca. 306. And a payment by
a party not actually indebted at the time to the bankrupt has been held bad, though in anti-
cipation of goods previously ordered of the bankrupt. Bishop v. Crawshay, 3 Barn. &C. 415. ;
but qucBi-e whether this would not be good under the § 82. of the new act ? As to payments by
partners, see post. A payment to a carrier by the bankrupt for carriage of goods, was held
not protected by the 19 G. 2. c. 32. § 1. Bradley v. Clark, 5 Term R. 197. And so also a bill
of exchange given by a bankrupt after an act of bankruptcy, in payment of damages recovered
against him before the bankruptcy. Pinkerton v. Marshal, 2 H. Black. 334. But these two
last payments would now be protected by the more general words of the 82d section of

6 G. 4. c. 16. However, it must still be a bond fide payment, not for instance a payment for
goods before they are deYweveA, per Bayley J. 5 Barn. & C. 416. j nor, perhaps, a payment by
weekly instalments for goods previously delivered to the bankrupt. Bolton v. Jager, l Ry. &
Moo. 265. II Payment by the acceptor of a bill, after time given him by the holder on con-
dition of allowing interest, is not a payment in the course of trade, and of course not pro-
tected against a secret act of bankruptcy. Vernon v. Hall, 2TermR. 648. A banker is
affected by notice equally with other persons ; and if in such case he pays the draft of a trader
keeping cash with him, he is liable to pay it over again to the assignees. Vernon v. Hankey,
2 Term R. 1 15. 3 Bro. Ch. R. 313. But the assignees having recovered the money from the
banker, cannot compel the creditor to whom the bankrupt paid it to refund. Vernon v. Han-
son, 2 Term R. 287. If a person borrows money, and repays it after a secret act of bankruptcy
this, though not a payment in the course of trade, will yet be allowed ; for the loan being
repaid, it will be considered as never borrowed. Ex parte Congalton, 3 Bro. Chan. R. 47.
||So where a party lent to a bankrupt during his imprisonment money to settle with his cre-
ditors, and the object failing the money was repaid, the repayment was protected. Toovey v.
Milne, 2 Barn. & A. 483. Money in dispute was deposited by a bankrupt in the hands of
an arbitrator who was to decide to whom it belonged, and he, before the commission, and
without notice of any act of bankruptcy, paid it to the person whom he thought entitled. It
was held that the assignees could not recover it from the arbitrator. Tope v. NichoUs,

7 Barn. & C. 101.; and see 4 Taunt. 198.||

||By the 46 G. 3. c. 135. § 1. and the 49 G. 3. c. 121. § 2. all 46 G. 3. c.i35.
conveyances by, all payments to, and all contracts and other § i- 49G. s.
dealings and transactions by and with the bankrupt, and all exe- ^' ^^^" ^ ^'
cutions and attachments two months before a commission, were
declared valid, provided the party had no notice of an act of
bankruptcy, or that the trader was in insolvent circumstances ;
and by the 56 G. 3. c. 137. § 1. a delivery of goods or effects
without notice of an act of bankruptcy was protected.

The 6 G. 4. c. 16. which has repealed the former statutes, 6G. 4. c.ie.
has I'e-enacted, altered, and extended their provisions. By the
81st section (which re-enacts the 46 G. 3. c. 135. § 1. and 49 G.3.
c. 121. § 2.) all conveyances by, and all contracts, dealings, and
transactions by and with any bankrupt bona fide entered into
more than two calendar months before the commission (a), and all (a) See i Moo.
executions and attachments bonafde executed and levied more & Malk. 137.
than two months before the commission, shall be valid not- ''o, i4i.25i.
withstanding any prior act of bankruptcy, provided the person
dealing, S^c. had no notice of any prior act of bankruptcy : {b) (*) T'lis provi-
provided that where a commission is superseded and another ^'°" ** "^^^*
commission issued, no such conveyance, contract, Sfc. shall be
valid unless made, entered into, ^c- more than two months
before the first commission.

6S8 BANKRUPT.

(a) The words By § 82. it is enacted, all payments really and honajide madW
"in the course j^y ^^^ bankrupt to any creditor (a), (not being a fraudulent pre-
19G. 2.' c. 19. ference), and all payments bond fide made to any bankrupt before
\ 14. are here the date and issuing of the commission shall be valid, notwith-
omitted; and standing any prior act of bankruptcy, provided the person so
the notice un- (jgahnn,. ]^q^ ^ot notice of any act of bankruptcy,
der the 6 G. 4. ° ^ ' •'

c. 16. is in all cases notice of an act of bankruptcy, so that it is now unnecessary to consider the
cases as to notice of insolvent circumstances, or of stopping payment. Where A. purchased
a library of ^. after an act of bankruptcy by B. of which A. was ignorant, it was held the
assignees could not recover the value of the books without at least tendering the price, since
the payment by A. was valid under the 82d section. Hill v. Farnell, 9 Barn. & C. 45.
Sedvide Carter v, Breton, 6 Bing. 617. The clause extends to payments bond fide made before
the act took effect. Churchill v. Crease, 5 Bing. 177. Terrington v. Hargreaves, id. 489.
A payment made by a partner who has committed an act of bankruptcy of a partnership debt
due from the firm before the act of bankruptcy, is not good, if the creditor receiving it ha^
notice of the partner's act of bankruptcy. Craven v. Edmonson, 5 Bing. 734. Where the
bankrupt after a secret act of bankruptcy bought on credit and sold for ready money, at
unduly low prices, the purchasers were held not protected under the 8'2d section, unless the
purchase was in the usual course of business. Ward v. Clarke, 1 Moo. & Mai. 497.

§83. By § 83. the issuing of a commission, if the adjudication be

notified in the London Gazette^ and the person to be affected
may reasonably be presumed to have seen the same, shall be
deemed notice of an act of bankruptcy.

§ 84. By § 84. no person or body, Sj-c. having money, goods, wares,

SfC. belonging to any bankrupt, shall be endangered by payment
or delivery to the bankrupt without notice of an act of bank-
ruptcy.

§ 85. By § 85. notice to the agent of a corporate body shall be

notice to the body.

§ 86. By § 86. no purchase for valuable consideration, where the

purchaser had notice of an act of bankruptcy, shall be impeached
by reason thereof, unless the commission be sued out within
twelve calendar months after such act of bankruptcy.

A 87. ^y § ^7" "° ^'^^^ ^° ^"y ^^^^ o^ personal estate sold under any

commission shall be impeached by the bankrupt or any claiming
under him, in respect of any defect in the proceedings, unless the
bankrupt has commenced proceedings to supersede such com-
mission within twelve months from the issuing thereof. ||
Foster v. [The relation operates only on voluntary payments with notice ;

Allenson, ^^^ jf ^^ debtor pays the debt in consequence of a judfrment at

2 Term R. 479. i ^1 • ^ ^ ^ ..u Vi *• t

llFuller V ^^'^^ ^"® assignees cannot recover the money a second time.j

Gibson, 2 Cox, 24. Puckell v. Down, 3 Camp. Ca. 151. Qii. Whether a payment on judg-
ment by default is protected? See 2 Christ. B. L. 600. ; and see 1 Will. 4. c. 7. § 7. which
takes judgment by default in adverse suits out of the operation of the 108th section ; and see

Stevenson v, || So also payment of rent to a landlord who is about a distrain

Wood, 5 Esp. jg ^ payment protected by the statute, though after an act of
M^avoTv. bankruptcy.

Croome, 1 Bing. R. 261.

Windham v. But a debtor of the bankrupt is not warranted in paying funds

fstarlTN PC °^ ^^^ bankrupt on a mere attachment in the mayor's court.
147^,^ and see" before judgment. ||
Hovil V, Browning, 7 East, 1 54.

[It

(M) Of the Relation to the Act of Bankruptcy, &^'C, ()39

[It will not avoid a fair act substantially complete, though t
defective in some formal circumstance. If therefore a trader Paslev 2 Terra
assigns goods at sea, and at the same time undertakes to indorse R. 435'.
and deliver the bill of lading as soon as he receives it, the in- '^^^^ like law
dorsement will be good, though an act of bankruptcy be com- ^* ^° ^" *"" .
mitted beiore it is made.] a hm of ex-

change in pursuance of a prior agreement. Smith v. Pickering, Espin. Ni. Pri. 50. ||See
Watkins v. Maule, 2 Jac. & Walk. 237. ||

1^ & feri facias is taken out, and indorsed according to the sLev. 69. 191.
statute, and delivered to the sheriff, and after, the same day, the See ace. 1 P.
defendant becomes a bankrupt, and the sheriff levies 400/. of the (v^'m^^* \^]'
goods of the defendant, and pays it to the plaintiff; yet the not within °'^
commissioners may assign these goods notwithstanding, Sfc; for, 21 Jac. i, c.19.
by the delivery of the writ to the sheriff, the goods are bound in § 9-] ||Sect.
no other manner than before the statute they were bound from ]^\'f'. 9'*'
the teste of the writ ; and by the delivery of the writ the execu- 1 Will. 4. c 7.
tion is not served or executed, {a) § 7.||

[It seemeth to have been formerly {h) very much doubted, {b) See Daily
whether the assignees could maintain any action against an officer v. Dunning,
who had the goods of a bankrupt in execution after an act of bank- | ^.^^* 'J^-
ruptcy, and before the issuing of the commission ; but it is now ^ ^^^ g^^ ' '
settled (c), that the assignees may in such case bring trover against S. C.
him, though the relation shall not operate so as to make him a (c) Cooper v.
trespasser, (rf) ||And trover seems to lie though the sheriff seize, ^ ^"^'rJ, ^?''''*
sell, and pay over the money before a commission issues. (^)|| r. 55, s C
{d) Nor will he be a trespasser, though he sell after notice from the provisional assignee.
Smith V. Miles, 1 Term R. 475. JlSee Wyatt v. Blades, 3 Camp. Ca.395. Steady. Gascoigne,
8 Taunt. 527. (e) Potter v. Starkie, cited 4 Maule & S. 260. And as to the protection which
the courts will give to the sheriff, see Durr. 37. Macgregor v. Dirch, 4 Taunt, 585. King v.
Bridges, 1 Moo. 43. 7 Taunt. 494. Durr v. Freethy, 1 Ding. R. 71.||

II And the assignees may also bring trover against the exe- Menham v,
cution creditor suing, if he makes himself a party to the con- ^r'"""^^
version, as by giving a bond to the sheriff, or by accompanying ^q^^'
the officer in levying. ||

[A purchaser for a valuable consideration, without notice of an Akerry v. Wii-
act of bankruptcy, shall not be obliged in equity to discover any Kams, 2Vern.
thing that may tend to deprive him of a legal title,* but every n^*J?°n^^p'
advantage shall be left him to defend himself. Indeed where a temp.Ta^lb e's
commission is actually taken out, the case is very different, Wilker v.
because that is a public act, which all are bound to notice [a) ; Bodington,
but an act of bankruptcy may be so secret as to be impossible to np*if"' ^^^'
be known.] Touchett;

1 Eden, 158. And as to a mortgagee's right to tack further advances made after a secret act
of bankruptcy, see Ex parte Herbert, 13 Ves. 183. Hitchcock v. Sedgwick, 2 Vcrn. 156. Eden's
B. L, 254. Sugden V. & P. 721. (a) By 6 G. 4. c. 16. § 83., the issuing a commission is only
notice if au act of bankruptcy has been actually committed; and if the adjudication is published
in the London Gazette, and the party to be affected may reasonably be presumed to have seen
the same. And it was decided in Sowerby v. Drook, 4 Barn. & Aid. 523., that the issning a
commission is not notice independent of statutory cnactment.H

H(I) Ac-

BANKRUPT.

11(1) Actions and Suits by Assignees, and Evidence

therein. II

Cro. Car. 187. ^HOUGH the bankrupt's estate is transferred to the as-
Jones, 2'25^ signees, yet must they pursue the same remedies for the re-

of law lav ° covery of it as the bankrupt lumself ; therefore if a debt upon a
against the simple contract due to the bankrupt is assigned, an action of debt
bankrupt, it will not lie against the executor of the debtor, but the assigned
lies against the must bring his action on the case. '

assignee. Lro. *=• 1

Jac. 105.

Allen, 28, 29. The plaintiff declares upon an assumpsit for 43/. Is., and set^
Stile, 62. S. C. forth an assignment of the debts of the bankrupt, mentionat. iri^
Itayin. b. L. quadam schedida continen. jprcEdict. summam 43/. 1^., and the jury
(^i) This case is ^^d he was indebted only 41/. 1^., which he promised, 8j-c. and,
not worth at- that the commissioners assigned debitaprced. iyi quadam schedula^
tending to — coiitinen. prad. summam 43/. Is., and if this be the same promise,;
assignees now concludes for the plaintiff: and because the issue and verdict
declare gene- iii^i • ii

rallti as such, were concluded to trie promise, and the assignment not in

without men- question, and the statute giving the like remedy to the assignee

tioning any as the bankrupt had, it was adjudged for the plaintiff, (b)
assignment ;

they state the cause of action accruing to the bankrupt before he became such, the promise
in like manner; and in the breach allege the defendant has not paid to the bankrupt before he
became such, nor to the assignees since ; and conclude to the damage of the assignees.

Lev. 17. If there be a joint bond to A. and B., and A. become a bank-

Raym. 6, 7. rupt, 8fc. the assignee cannot bring an action alone : but if as-

Keb 167 . ^ .^. . .

(a^ But the 5>igned to B., he alone may bring an action, being entitled to one

facts must ap- moiety in his own right, and to the other for the benefit of cre-

pear on the ditors, by virtue of the assignment, [a)
record.

Carth. 29. ^^ assumpsit the plaintiff declared as assignee under a com-
Pepys and mission of bankruptcy awarded against J. S. who became a bank-
Low, Comb. rupt, 4*^., and that the defendant was indebted to the said J. S.,
108. b.C. 0,^ , jjjjj Qj^ demurrer to the declaration it was objected, that it

[LaWSOn v. ^ . . , . , , -r n t 11

Lamb 1 Lutw. "^^^ uncertain, it not being shewn how J. b. became a bankrupt,
274. S. P. viz, either by keeping close within his house, by suffering him-

2 Ld. Raym. self to be arrested, Sj-c. ,- and that in pleading simony, the par-
1548. b. f. ticular act must be set forth : but it was held well enough in this
must lay the Case, for the statutes mentioned the word banh-upt, but in the
promise to be statute against simony no mention is made of the word ; besides,
made to the in this case the plaintiff is a stranger to the bankrupt, and it
bankrupt, it cannot be presumed that it lies in his knowledge in what manner
be^prior to the be became a bankrupt.

bankruptcy. 6 Mod. 151. Stra. 697. &cm5, if subsequent ; and therefore, in such case, they
need not name themselves assignees. Evans v. Mann, Cowp. 569.] ||Thomas v. Riding,
1 Rose, 121. So in action of covenant for rent accrued since the bankruptcy, it is no objection
on general demurrer that the title is not set out. Parker v. Manning, 7 Term R. 537.11 [If the
same persons are assignees of A. and B., who were partners, but there is no joint commission,
they cannot in one action sue for debts due to A. and B. jointly, and also for debts due to .
each individually. Hancock v. Hayward, 3 Term R. 433. Streatfield v. Halliday, Id. 779.] \
IJBut after verdict the defect is cured, since it does not appear under how many commissions '
the assignees claimed. Ibid. Vide Smith v. Goddard, 3 Bos. & Pull. 469. The assignees under
a joint commission may sue for demands due to any of the bankrupts, describing themselves

(I) Actions and Suits by Assignees, and Evidence therein. 641

as assignees of those to whom the debt is due. Stonehouse v. De Silva, .5 Camp. 399. Harvey
V. Morgan, 2 Stark. 17. Where there are separate commissions and different assignees under
each, in declaring for a joint debt they must describe themselves as assignees of each separately.
Ray V. Davis, 2 B. Moo. 3.; and see Hogg v. Bridges, Id. 122. 2 Saund. R. 47. p. note.
And by the 16th section of 6 G. 4. c. 16., joint commissions may issue against some of several
partne's.' The non-joinder of a joint assignee as plaintiff is a ground of nonsuit, and need not
be pleaded in abatement, Snelgrove v. Hunt, 2 Stark. 424. In an action by the provisional
assignee the assignment by him to the general assignees between the writ and declaration, is
no ground of nonsuit on the general issue. Q«. If specially pleaded. Page v. Bauer,
4 Barn. Sc A. 545. In an action by a new assignee on a judgment obtained by a former
assignee, it is sufficient to state the removal, and that the new assignee was duly appointed.
De Cosson v. Vaughan, 10 East, 61. Counts for money lent and money paid by plaintiff as
assignee, may be joined with counts for money had and received to his use as assignee;
for it may be intended that the money lent was the bankrupt's money which, under the 5 G. 2.
c. 30. § 32. (sect. 102. of the fi G. 4. c. 16,), the assignee might be authorized to lend.
Richardson v. Griffin, 5 Maule & S. 2C;4.||

[The assignees may bring either trover or assumpsit for money Hitchin v.
received subsequent to the bankruptcy ; but they cannot bring Campbell,
both; and having brought one, and proceeded to judgment in 2B.ack.R.7<9,

3 Wils.
They
Lev, 191.

that, it will bar the other.] 309.

were formerly not allowed to maintain assumpsit in such case. 1 Ves. 329. 3

II They cannot bring trover unless the money proceeds from the King v. Leith,

conversion of valuable property; in such case, they can recover sTermR. hi.

in trover the full value of the property, whereas in assumpsit they u™'j ^'

can only recover the sum actually received on the sale. And in 4 Term R. 211.
assumpsit the defendant may set off any debt due to him from
the bankrupt.

The assignees by bringing assumpsit affirm the bankrupt's con- ^ ^^" v. James,

tract, and must stand in his situation in all respects ; but by gutigj. y

bringing trove?-, they elect to disaffirm the bankrupt's contract, Carver,

and to stand on their rights as assignees. 2 Stark, 433.

By bringing assumpsit, however, they only affirm the transaction Burra v,

as a valid sale on the part of the bankrupt, and do not thereby Clarke,

let in a set off" of a debt founded in a fraud on the bankrupt, and Fair v'^Hver

which the defendant could not have set off" against the bankrupt is East, iso. *
himself.

If the assignees once affirm the acts of a person wrongfully
selling the bankrupt's property, they cannot afterwards treat him
as a wrongdoer and maintain trover.

Where a bankrupt, after his bankruptcy, drew a check on Matthew v.

his bankers in favour of a creditor, to whom the money was Sherwcll,

paid, it was holden that the assignees could not recover the 2 Ir.unt. 459. ;

. o ^ . . • &n(.t see

amount in trover for the check against the creditor, since the Walker v,

action proceeded on the ground that the check was drawn I.aing,7Taunt.
without authority, and worth nothing, and, therefore, at all ^gk. 1 Moo,
events, the value of the paper only could be recovered ; and it ?)^'"|i ^'

seems the plaintiff" must be nonsuited in such an action. 8 Taunt. 264.

2 B. Moo. 247.
Assignees, like other persons, are under the necessity of suing Keay v. Rigg,
in a Court of Requests for a debt under 40^., however in- J j^'^vvfrtf vl'"
convenient it may be that questions of bankruptcy should be tried Abrahams,
there. 1 Barn, & A,

567.

Vol. I. T t Where

Brewer v.
Sparrow,
7 Barn. & C,
310.

G¥2

Allanson v.
Atkinson,
1 Maule&S.

585.

Miles V. Wil-
liams, 1 P.
Wms. 249.
1 Atk. 19Z.

Sturdy r.

Arnaud,

3 Term R. 5 99.

BANKRUPT.

Where the bankrupt on being taken on a ca. sa. subsequei \
to an act of bankruptcy, delivered goods to the officer, whic \
were pawned by the officer, and the produce was five weeks
afterwards paid over by the officer to the defendant, the plainti f
in the execution, but not in the specific money raised by tha
officer, it was held that the assignees might recover this, as nionei/"
had and received, from the defendant. — Qucere. Whether sue \
a payment, being before a commission, would now be protectejl
by the eighty-second section of 6 G.4. c. 16.|| |

[It is in one case said, that if a bond was made to A. in tru^t
for j8., who becomes a bankrupt, the assignees may bring the
action in their own name, though B. must have brought it in thp
name of his trustee ; but this opinion has been denied to be lav/
by Lord HardwicJce, who thought clearly by the manner of
wording the clause, relating to the commissioners' power of
assignment of a bankrupt's effects, 1 Jac. I., that assignees cau
only have the like remetly to recover a debt as the bankrupt
himself might have had, the words "as the party himself might
have had," in the conclusion of that clause, appearing to him to
be meant of the bankrupt.

The assignees cannot maintain an action to recover the pay-
ment of an annuity, which the bankrupt, prior to an act of bank'
ruptcy, had agreed should be applied to satisfy a debt due from
the bankrupt to the grantor of the annuity.]

[|By the 6 G. 4. c. 16. § 88. (following the 5G.2. c.30. § 38.) it
is enacted, " that no suit in equity shall be commenced by any
" assignee or assignees, without the consent of the major part
" in value of the creditors of such bankrupt, who shall be pre-
" sent at a meeting of the creditors, pursuant to notice to be >.
" given in the London Gazette for that purpose."

[Creditors
cannot give a
general power
to assignees
to prosecute
suits at their
own discre-
tion, but

there must be a meeting of creditors upon notice in the Gazette, to consider of each particular
suit. Atk.R. 92. pi. 39. And a solicitor who carries on suits for an assignee, without the con-
sent of the creditors assembled pursuant to this act, is not entitled to be paid out of the bank-
rupt's estate, but is left to a personal remedy against the assignee employing him. E,x parte'
Whitchurch, 1 Atk. 210. Actions at law may be brought without first calling any meeting of
creditors. Hussey v. Fidell, 5 Salk. 59.] .[jA demurrer does not lie to a bill in equity because
it does not slate the consent of creditors. 3 Younge & J. 375.1|

See Elraslie v.
M'Aulav,
sBro.C.C.
624. and note.
(Eden's edit.)

Franklyn v.
Fern, Barnard.
Chan. R. 30.

Provided that if one third in value of the creditors do not
attend, the assignees may, with consent of the commissioners,
do the several acts mentioned.

If the majority of creditors at such meeting dissent from in-
stituting a suit to get in the estate, the court will not in general
suffer tiie other creditors to file a bill for that purpose ; but it is
otherwise if collusion is shewn.

The consent of creditors is not necessary to a suit by the
assignees on a personal claim for their own indemnity, since the
creditors have no interest.
Bull.N. P. 57. Evidence in Actions by Assignees.^ [In actions bronght by
assignees, it is necessary to prove the bankrupt a trader within
the statute, the act of bankruptcy, that the commission wjus

regularly

Wilkins V.
Fry, 1 Meriv.
R. 244.

(I) Actions and Suits by Assignees, and Evidence therein. C4S

regularly granted, the assignment to the plaintiff, and property
in the bankrupt.]

liBut if the defendant by his conduct has impliedly admitted Maltby v.
the title - - . - „. . .

pensed

i of the assignees, the strict proof of their title is dis- Christie,
with. ■ l^'P-^'

340.
Diclcenson v.

Coward, 1 Barn. & A. 677. Goldie v. Gunston, 4 Camp. 381. Harmer v. Davis, l Moo.
R. 300.

And so also where the issue joined is not such as to dispute Corsbie v.
it ; as where to debt on bond by assignees the defendant pleaded ^''^er, iStark.
only payment.

The mere proof by the defendant of a debt under the com- Rankin v.
mission, is not such an admission of the assignees' title as to dis- Horner,
i pense with the proof. E^^arte^^'

Jacks, 1 Rose, 393,

Where the title of the assignees comes incidentally in ques- Doe dem.
tion, they being strangers to the record, it must be strictly ^awson v.
proved : no notice can be given to dispute it. 4 Taunt 741

But though the assignees are not named as assignees on the Simmonds v.

record, still if the opposite party knows that they claim as such, Knight,

! the strict proof is dispensed with, unless a notice is ijiven. ^ Camp. 251.;

\ &"d see Orow.

' 24.

And so also, though there are other defendants besides the Oilman v.

assignees, if such defendants justify as servants of the assignees. Cousins,
° J J' '=2 Stark. Ca.

82.
By the provisions of the 6 G. 4. c. 16. (which have materially See Eden's
extended those of Sir Samuel Romilly's Act, the 49 G. 3. c. 121. Kank. Law,
§ 10.) the right of disputing the bankruptcy is intended to be ^'^^'
i confined to those cases where the assignees claim either as plain-
] tiffs or defendants, in respect of their rights as assignees origi-
\ nating solely under the hanh-uptcy, and where the bankrupt
; himself, had there been no bankruptcy, would have had no claim.
i But in cases where the assignees are meiely suing for a debt or
demand for which tlie hanlcrupt might himself have sued, here
the other party is excluded from disputing the commission, a
certain time being allowed for the bankrupt himself to do so.
ITie former provision is contained in the ninetieth section (fol-
lowing § 10. of 49 G. 3. c. 121.), whereby it is enacted, that in
I any action by or against any assignee (a), or any commissioner r ^' '*'"

!or person acting under the warrant of such commissioner, for L) q„. whe-
any thing done as such commissioner, or under such war- thertheCoIlow.
rant {Ij\ no proof shall be required of the petitioning creditor's ingor similar
debt, trading, or act of bankruptcy, unless the other party, if words arc not
. defendant before plea, and if plaintiff before issue, shall give « j-q,. j,' j|g{,j
! notice of disputing some and which of such matters; and if the "or demand
same are proved or admitted after notice given the judge may " forwhichthe
.certify such proof or admission, and such assignee, commissioner, " |^i>"'^''i'r'^
I Sfc. shall be entitled to the costs occasioned by such notice, (c) u couliX not
" sue." (J)) In the 49 G. 3. c. 121. the words were " the commission of bankrupt and pro-
" cecdings shall be evidence." (c) Assignees are not entitled to costs when they are non-
suited. Atkins V. Seward, 1 Bro. & B. 275.

T t 2 And

64i BANKRUPT.

§ 91- And by § 91. (following § 1 1, of 49 G. 3. c. 121.) similar prool

is dispensed with on hearing of suits by assignees in equity,
unless notice is give within ten days after rejoinder.

$ 92. The latter of the provisions above mentioned is contained in

(rf) Under the the ninety-second section, whereby it is enacted, that if the

49 Cj.3. C.121. bankrupt shall not (if within the kingdom at the issuing of the
thedeposuions . r. . \ o t ?• •

were decided commission) within two calendar months atter the aujuclication,

to be only or (if without the kingdom) Within twelve calendar months,
primdfacie give notice to dispute the commission, and proceed therein
and mf lit be ^^^^^ ^"^ diligence, the depositions taken before the corn-
contradicted, missioners of the petitioning creditor's debt, trading, and act

3 Camp. 424, of bankruptcy shall be co?iclusive evidence {d) of the matters therein
2 Maule & S. contained, in all actions at law or suits in equity brought by the
deposition^ assignees Jbr any debt or demand for "johich the bankrupt might
are only ' have sustained any action or suit.

evidence of the facts appearing on the face of them ; and, therefore, unless these facts as set
forth are sufficient to establish a debt, trading, and act of bankruptcy, the evidence of the
depositions is insufficient, notwithstanding the adjudication. Cooper v. Machin, 1 Bing. R. 42«?,
Lawson V. Robinson, 1 Stark. Ca. 456. Marsh v. Meager, 1 Stark. Ca. 353. Skaife v. Howard,
2 Barn. & C. 560. Kay v. Stead, 2 Stark. 200- Rawson v. Haigh, 1 Carring. 80. The depo-
sition of the petitioning creditor is evidence of his debt, though he himself is not competent
to support the commission. Bisse v. Randall, 2 Camp. 493. Green v. Jones, 7rf. 411. The
92d section applies to cases where an action is brought by the assignees before the two nionthi
allowed the bankrupt to dispute his commission have expired, if the trial takes place after that
period. Earith v. Schroder, 1 Moo. & Malk. 24. The section only applies to the depositions
under the commission against the bankrupt, whose assignees are plaintiffs on the record; and
therefore where the commission is prosecuted by a petitioning creditor, assignee of anothei*
bankrupt, and it becomes necessary to prove the petitioning creditor's debt, &c. under that
former bankruptcy, this cannot be done by producing the depositions under such former bank-
ruptcy, but must be done by the ordinary evidence. Muskett v. Drummond, 10 Barn. & C. 155.

X 93 And by § 93., if a debtor is sued by the assignees before the

{e) No provi- time allowed the bankrupt to dispute the commission has

sion is made elapsed, the defendant may pay the sum into court, and all pro-

for paying the ceediuffs shall be stayed ; and after the time has elapsed, the
money out of . ° , , -^ ' ^ ^ , \ n

court either to assignees may take the same out ot court. (^)1|

the debtor or the bankrupt, in case the commission is superseded. The 94th section does not
appear to meet this case.

Abbot V. [It is an established rule, that assignees must prove the pe-

Plumbe, titioning creditor's debt by the same evidence which must have

Dougl. 216. been produced in an action against the bankrupt; and as it is
But, as agamst • . , » , . u ^ i -i •-.„

a person who necessary, in order to recover on a bond, to call the subscnbirg

is party to a witness, unless some reason can be given for his absence, so the

deed, his ex- petitioning creditor's debt, if it arises on bond, must be proved

amination j^ yike manner.]

before the -■

commissioners, wherein he admits the execution of it, supersedes the necessity of calling the ,

subscribing witness. Bowles v. Langworthy, 5 Term R. 366. ||But see Call v. Dunnirf,

4 East, 55., and Phill. on Evid. vol, 1. 446. And as to proof of petitioning creditor'l
debt, see Id. v. ii. 321.||

^owiev. Har- ]] Where the petitioning creditor's debt arises on a note
Slalk 14°* ^ (loi'sed or a bill accepted by the bankrupt, evidence must

given that the indorsement or acceptance was prior to the act

bankruptcy.
Watts V. Entries and accounts signed by the bankrupt before

bankrupt*/.

lis

(I) Actions and Suits hy Assignees, and Evide7ice therein, 645

bankruptcy, are admissible as admissions of a debt due from Thorpe,

him. 1 Camp. 376.

Hoare v.
Coryton, 4 Taunt. 560. ; and see Jarrett v. Leonard, 2 Maule & S. 265. Rex v. Barnes,
1 Stark. 243.

An admission by the bankrupt of a debt due to the petitioning Smallcombe

creditor, made after an act of bankruptcy, but before the com- ^- Bruges,

- - . . -1 „ i- J' IsPrice, 136. ;

mission, IS not evidence. |] ^^^ ^^g

Taylor V. Kinloch, 1 Stark. 176.
[The depositions of the act of bankruptcy, when recorded, Janson v.
according to 5 G. 2. c. 30. jj 41., are evidence in an action at Wilson,
law to prove the precise time when the act of bankruptcy was Vl^r^-f ^^^*
committed, if specified therein.] on jj^g deposi-

tions that the debt is due to the bankrupt as executor, it is not necessary to prove him such,
nor if it appears due to him as assignee, is it necessary to prove the assignment. Skaife v.
Howard, 2 Barn. & C. 560. ; and see 1 Deacon, 787.; but see 10 Barn. & C. 155.||

II By § 95. of the 6 G. 4. c. 16. all things done pursuant to 6G.4. c.i6.

the above clause of 5 G. 2. are confirmed, and the Lord Chan- § 95.

cellor shall be at liberty from time to time by writing under f ^%, „
1-11 . "^ 1 I 1 • IP 1 1 («) Iheuourt

his hand to appoint a proper person, who, by himseli or by de- of C. P. has

puty, shall enter of record all matters relating to commissions, no authority
and have the custody of such entries. And by § 96. no com- under this sec-
mission, adjudication of bankruptcy, or assignment, or certificate *!°" to compel
of conformity shall be received as evidence, unless so entered ; ^jjg proceed-
and every such instrument shall be so entered, on application of ings ; the ap-
the parties, without petition ; and the Lord Chancellor may on plication must
petition direct any depositions, proceedings, or other matters ^,^° * .?
relating to commissions, to be entered of record, and the certifi- Johnson v.
cate of such entry written upon the instrument, shall be evi- Gillett,
dence of the instrument having been entered, without proof of 5 Bing. 5. ; and
the signature of the officer signing the entry, (a) ^^ 82^6 Bin?

576. The production of the assignment duly enrolled, is sufficient without proof of its execu-
tion, unless notice is given to dispute that fact. Tucker v. Barrow, 1 Moo. & Malk. 137.
sed vide 2 Younge & J. 5.

And by § 97. (following the 3 G. 4. c. 81. § 7.) office copies of 97.

any original instrument or writing filed in the office, or officially
in possession of the secretary of bankrupts, shall be evidence to
be received of such instrument or writing ; and the costs of pro-
ducing the original shall not be allowed, unless it appear that the
production thereof was necessary.

And by § 98. all commissions, deeds, assurances, writs, and § 9S.

instruments relating to the estates of bankrupts, are exempted
from stamp duties. ||

[A bankrupt caimot be a witness to prove his own act of bank-. Field v. Curtis,
ruptcy (tt) ; but, if the defendant calls him, he waives all objec- ^^ Strange,
tions to the competency of his evidence, and the bankrupt ^20, Assignees
may be cross-examined by the plaintiffs to that fact, (b) Woodmass,

ruled by Lee C.3., Mich. Sittings, 1752. Bull. Ni. Pri. 38. ||(fl) Because formerly bankrupts
were considered as criminals; but this reason is unsatisfactory. See 7 Term R. 61 1. 2 Philh'ps,
334. (b) See co7itru Wyatt v. Wilkinson, 5 Esp. 187. Declarations of the bankrupt at the
time of absenting himself from home are admissible, but not if made afterwards. Ambrose v.
Clendon, Ca. temp. Hardw. 267. Robson v. Kemp, 4 Esp. Ca. 233. Marsh v. Meager,
I Stark. Ca. 353. Schoeling v. Lee, sStark. Ca. 149. And as to proof of the act of bank*
ruptcy, see 2 Fhill, on Evid. 309,||

T t 3 The

OiG BANKRUPT.

IJiiU. N. P. 43. The bankrupt cannot be evidence to swear property in himself,

Cowp. 71. or a debt due to his estate, without having obtained his certificate,

IJSee Carter v. ^nd given a release of his share in the surplus and the dividends,

1 Bar"' & C ^°' ^^^® ^^ '^ plainly interested ; but he may prove property in,
444. Goodhay or a debt due to, another.

V. Hendry, 1 Moo. & Mai. 519.1|

Masters v. Upon the same principle an uncertificated bankrupt cannot he

Drayton, witness to prove usury in a creditor, who had proved that debt

2 Term R, j ^u • •
496.; Hand see """^^ ^he commission.
14 East, 565.11

Walker v. It is a settled rule, that a bankrupt may be a witness to

Walker, cited diminish the fund, though he has not obtained his certificate ;
Butler V ' because, in so doing, he speaks manifestly against himself; for
Cooke, Cowp. he may not only defeat his title to the benefit which the law
70. \\Ej; parte allows him, if the fund is of a certain amount, but he hazards
Burt, 1 Madd. the displeasure of all his other creditors.

46.11 T

Russel V ^^ ^ bankrupt has had his certificate, and received his allow-

Russel, 1 Bro. ance, his evidence will be adniissible, for he is not bound to

Chan. R. 269. refund.

Chapman v. It must be observed, however, that though a bankrupt has

Gardner^ 2 H. obtained his certificate, yet he is not a competent witness to

Cross V Fox P^'o^e the petitioning creditor's debt, or any other fact necessary

and Flower v. to support the commission.] (a)

Herbert, Idid. \\(a) But this rule does not seem to rest on satisfactory reasons. See sPhill.

on Evid. 535.||

Morgan v. || j^g n^^y prove the signatures of the commissioners, in order

&c'i5 ^^" to identify the proceedings ; this not being evidence to support

the validity of the commission.
Fletcher, as- Where in an action by the assignees the defendant called the

signee, &c. v. bankrupt as a witness, and the plaintiffs then proposed to cross-
g^i^^'nt'^p^' examine him to prove his act of bankruptcy, Lee C. J. held this
253^Wvat't V *"'g^t ^6 done, as the defendant had waived all objections by
Wilkinson, calling him ; but Ckambre J. has held otherwise.

5 Esp, Ca. 187. Mr. Deacon, in his valuable work, vol. 1. 795., observes, that he cannot find
the first of these cases where Mr. Christian refers to it, but it is to be found as above ; and see
2Phill. on Evid. 336.

Williams v. A creditor is incompetent to increase the fund, and this

Stevens, whether he have proved or not ; but if he has sold his debt, he

Ad '^^^°' is competent. And he may be called to overset the petitioning

Malkin creditor's debt.

3 Camp. 543. Crooke v. Edwards, 2 Stark. 302. Granger v. Furlong, Black. R. 1273. Heath

V. Hall, 4 Taunt. 326. In re Codd, 2 Scho. & Lef. 1 16.

Green v. The petitioning creditor is incompetent to support the com-

'!'??^^f ^j*"^' mission by reason of his bond to the Lord Chancellor, but he is
411. Lloyd V. "^ 1 <- 1 • . 11-

Stretton competent to defeat the commission, or even to cut down his own

1 Stark. Ca.40. debt.

Tomlinson v. An assignee who has released his claims on the estate, is

Wilkes, 2 Bro. competent to prove the petitioning creditor's debt ; for after his

6 B. 397. release he is a mere trustee. Qucere. whether a commissioner is
Cooke V. ,, '-t J

Edwards, competent. 1|

2Stark. 302. ; and see further, as to evidence in suits by and against assignees, 2 Phil, on

Evid. 306. (6th edit.) Stark, on Evid., and Deacon's B. L. c. 19.

(K) Ql-

(K) Setting off, arbitrating, and compounding Debts.

647

(K)

IIB

Of setting off, submitting to Arbitration,
compounding Debts due to the Bankrupt.

and

Y 6 G. 4. c. 16. §50. (which consohdates the provisions of gQ 4 ^ jg
5 G. 2. c. 30. § 28., 46 G. 3. c. 135. §2.and 3., 7 G. 1. c. 31. § 50/
§ ]. and 2.), it is enacted, that where there has been mutual credit The clause
given by the bankrupt and any other person, or where there are .**'"'" ."'^
mutual debts between the bankrupt and any other person, the present act-
commissioners shall state the account between them, and one and the pro-
debt or demand may be set against another, notwithstanding any viso that the
prior act of bankruptcy committed by such bankrupt before the ha^ jV^n^*^
credit given to or the debt contracted by him, and what shall gjven two
appear due on either side on the balance of such account, and months before
no more, shall be claimed on either side respectively; *and the bankrupt-

ev£rv debt or demand hereby made provable against the estate f^\'T °!"^j^r
n i \ ^ 11 rp • f • i . («) Instead or

or the bankrupt may also be set oir m manner aroresaid agamst that the bank-
such estate ; * provided that the person claiming the benefit of nipt " was
such set off had not, when such credit was given, notice of an " '"J?'^^"^"
act of hankruptcy by such hanhiipt committed. (a)|| «^sto ^ed

*• payment." Vide 2 BvX&t. 26. Mod. 215. Eq. Ca. Abr. 8. 2 Vern. 428., from which it
seems that, antecedent to any statute on the subject, a debtor to a bankrupt merchant was
in practice only called upon to pay the balance after deducting what the bankrupt owed him.

[It hath been holden in one case, that the statutes of set-off Ryall v.
could not be pleaded by a debtor to a bankrupt in an action y^.l"'
brought against him by the assignees; for as between them there
could not be mutual debts, because, as the debtor could have
no action against the assignees, there could not be mutual re-
medies. But this decision hath been impeached in a later case, Ridout v.
and it is now settled, that a defendant may set off a debt due to Br"ugh,Cowp,
him from the bankrupt; for the assignees are to be considered as Rennet
■the bankrupt. 2 Aik. 49.

Contingent debts, not due at the time of the bankruptcy, can- „
, , P ^ ' t J^ Et parte

not be set off. Groome,

1 Atk. 119. Hancock v. Entwissle, 3 Term R. 435. ||But as contingent debts are now prove*
able by § 56. of the gG. 4. c. 16. they may be set off under § 50. sttprh.\\

A note indorsed to a debtor of tlie bankrupt after the bank-
ruptcy cannot be set off.]

155.

Marsh v.
Chambers,
2 Stra. 12.34.

Dickson v.

II Under the former acts the holder of cash notes of the bank-
rupt payable to bearer could not set them off against a debt Kvans, eTerm
due to the bankrupt, and sued for by the assignees, unless he ^ Wricht*"^
showed that they came to his hands be/ore the bankruptcy; but 2 Mai-sh. R.
if he proved that notes to the amount were in his hands three 209.; and see
or four weeks before the bankruptcy, the jury might infer that -'^^p«'^^«'Hale,
the notes were the same, and that they were in his hands ai the Ouchterlonv
bankruptcy. v. Easterby,

4 Taunt. 888.

Under the present act (§ 50. supra), the party holding such Hawkins v.
notes may set them off, though he take them after an act of Whitten,
bankruptcy, provided he had no notice of it ; and this although g^i^**'""* * ^
lie had notice of the bankers' having stopped payment, for notice

T t 4. of

6h8

BANKRUPT.

of an act of bankruptcy alone prevents the set-ofF under the new
act.

If, however, the party receives notes of Sijirm after he has no-
tice of an act of bankruptcy of any of the partners, this will
defeat his right of set-ofF. || _.

[Where there is a plain mutual credit, one party shall set of
against the other, and the statute is not to be construed oi"
dealings in trade only, or in case of mutual running accounts,
but in all cases of mutual credit the balance only shall be paid,
Therefore where Samuel Jones borrowed 1500/. of Coggs on
mortgage, and Coggs owed about 1400/. to Jones upon notes,
Jones was allowed to set off his demand upon the notes against
the mortgage.

But if A. and B. are joint traders, and J. S. is indebted to A.
and B. on their joint account 100/., and A. owes said B. 100/.
on two separate accounts ; J. S. cannot deduct so much as A.'s
proportion of the 100/. comes to out of the joint debt; because
the copartnership debts of A. and B. are to be first paid before
any separate debts ; but if there be a surplus beyond what will
pay the partnership debts, then, out of A.'a share of the surplus,
J. S. may deduct the separate debt of A.^

against J., and debtor under a joint commission against A and 5., can set off the debt he owes

the latter, by his demand against the former.

Ex parte

Christie,

10 Ves. 105.
JEx parte
Towgood,

11 Ves. 517.
Addis V.
Knight,
2 Meriv. R.

Dickson V.
Cass, 1 Barn.
& Adol. 343.

1 P.Wmg.326.
Dillon V.
Hyde, 1 Atk.
126. Td. 237
1 Ves. 375.
Lanesborough
V. Jones, 2 P.
Wms. 325.

Vide Ex parte
Edwards,
1 Atk. 100.,
where Lord
HardwicJce
doubted, whe-
ther a person,
a creditor un-
der a separate
commission

II It is now settled that the same mutuality is necessary in case
of debts and credits under the bankrupt law as in ca.ses of set-off
under the statutes of set-ofF; and this rule prevails in equity as
well as in bankruptcy and at law. And therefore, a debt due
from the bankrupt jointly with another cannot be set off against
a debt due to the bankrupt alone ; nor vice versa ; unless indeed
there is an express agreement to this efFect before the bank-
117. Kinnerley ruptcy ; or in case of fraud ; and where A. is indebted to B. and
V. Hossack, c., and B. and C. to A., and B. by deed takes upon himself
solely the debt to A.^ he cannot set off the debt due from A.
to himself and C.

2 Taunt. 170.
Ex parte Ste-
phens, 1 1 Ves.
241. Ex parte Ross, Buck, 125.

And where there are mutual credits between a firm and A.^

and only some of the partners become bankrupt, A. cannot in an

action by the assignees of the bankrupts, jointly with the solvent

partner, set ofF what is due from the firm, since such a case is not

within the statute, not being a case of mutual credits between the

bankrupts and a third person, but between the bankrupts and a

solvent partner on the one side, and a third party on the other.

Nor where funds of a partnership are assigned over to A.^

Frere, loEast a&er an act of bankruptcy by two partners assigning them, can

^^^' A.i in an action by the assignees of the bankrupts and a solvent

partner for recovering such funds, set off a debt due from the

firm to him ; for there is no- mutuality.

So also where the defendants had drawn bills for the accom-
modation of the bankrupt, which were outstanding at the time
of the act of bankruptcy, and the bankrupt, after the bankruptcy
and before the commission, paid to the defendants a sum of

money

Staniforth v
Fellowes,
1 Marsh. R.
185.

Thomason v.

Tamplin v.
Diggins,
2 Camp. R.
311.

Jil

(K) Setting off ^arbitrating, and compounding Debts. 649

money to take up the bills; it was held that the assignees were
entitled to recover this money, and that the defendants could not
set off the bills, since the money was the money of the assignees,
and the credit on the bills was given to the bankrupt. But as
the accounts may, under the new act, be taken down to the time
of the commission, this would now be otherwise.

Where a sale of the bankrupt's property was made after an Southwood v.
act of bankruptcy, but more than two months before the com- Taylor,
mission, and a creditor of the bankrupt was the purchaser of L j ^'^"* ^ ^'
goods at it, it was held that he might set off against the claim of
the assignees for the price a prior debt due from the bankrupt
to him ; for the sale was (under the operation of the 46 G. 3. '

c. 135.) in effect a sale by the bankrupt, and consequently the
credit was given by him ; and the present law re-enacts the pro-
vision of 46 G. 3. c. 135. §3., omitting the restriction of two
months before the commission.^

[Where A. was a creditor of the bankrupt for 100/. and 10/., Ex parte "Pres-
and a debtor to him on bond for 340/. payable on the 4th of ^^^' ^J^^^'
March 1 756, with lawful interest, and applied that he might set though the
off his demand of 100/. against the principal and interest due on debt be paid
the bond, and not be obliged to prove his debt under the com- ^f^'^'' the bank-
mission, and take a dividend upon it only ; the Lord Chancellor f "P^'^y' J'^^ "
said, though this is not in strictness a mutual debt, yet it is a quenceofa
mutual credit ; for the bankrupt gives credit to the party in con- liability heforcy
sideration of the bond, though payable at a future day, and he it may be set
gives the bankrupt credit for the debt upon simple contract, and ?r* j "'^" ^*
therefore it is a case within the equity of the 5 G. 2. 4Term R.211.

French v. Fenn, there cited. Martin v. Court, 2 Term R. 640. Dobson v. Lockhart, 5 Term
R. 153. II^j: farte Boyle, Co. B. Law, 542. Sheldon v. Rothschild, 8 Taunt. 156. Ex parte
WagstafF, 13 Ves. 65. Arbouin v. Tritton, 1 Holt Ca. 408. ||

A broker having a del credere commission may, under this sta- Grove v. Du-
tute, give in evidence, upon the general issue, a loss upon a policy bois, i Term
happening before the bankruptcy in an action by the assignees 5;: ^J^" '^®
of the underwriter, tor premiums upon various policies under- 285. S. P.
written by him. \Vide tit.

5e^o/,Vol.VII.||

But where there is no del credere commission, the broker Wilson v.
is not entitled to set off" losses on goods which he insured for jsj-'^p'^'^grf'^*
other persons, the debts being properly due to them, and not to ' ' '
the broker,

A broker is entitled to deduct money due from the bankrupt to Whitehead v.
him for premiums, out of what he collects on the policy, where Vaughan,Trin.
it is put into his hands to receive the money from the under- ^^j p^V
writers.] Carte?, in C.P.

Trin. 28 G. 3. Co. Bankrupt Laws, 647. 649.

II And he may not only retain what is due for premiums, but Olivev.Smith,
also his general balance due from the bankrupt under the clause 5 Taunt. 55.
as to mutual credit. ^.^t^r'-

underwriters and brokers, see tit. Set-off, Vol. VII.

Whether a bailee of goods can, in the event of the bailor be-
coming bankrupt, retain the goods for his general balance on the

ground

650

BANKRUPT.

JSx parte
Deeze, 1 Atk.
228.

Ex parte
Ockenden,
1 Atk. 235.

French v.
Fenn, Co. B.
Law, 565.

Rose V. Hart,
8 Taunt. 499.

Easomv. Cato,
5 Barn. & A.
661.

ground of a mutual credit between him and the bankrupt, has
been much agitated. Lord Hardwicke held in one case, that n
packer havhig received cloth to pack, was entitled to retain it:
against the assignees of the owner (who had become bankrupt
subsequent to the delivery of the cloth), not only for what was
due for packing, but also for a general balance: his Lordship
observing, that it was hard that mutual credit should be con-
fined to pecuniary demands, and that if a man has goods in his
hands belonging to a debtor of his, which cannot be got from
him without a suit at law or equity, that it should not be considered
as mutual credit. But in a subsequent case, decided six years
afterwards, his Lordship held that a miller, to whom corn had
been delivered to grind by a person who afterwards became
bankrupt, had no right to retain the corn for a debt due from the
owner, but only for the charge for grinding : and his Lordship said,
that in Ex parte Deeze there was evidence that it was usual for
packers to lend money to clothiers, and the cloth to be a pledge
(though this does not appear in the report of that case, and the
reasoning of his Lordship's judgment proceeds entirely on the
ground of the statutes respecting mutual credit applying to cases
of lien on goods).

In a subsequent case, in 1783, where a bankrupt before his
bankruptcy, and another party and the defendant, joined in the
purchase of pearls for sale, and the defendant advanced the
money, but the profit and loss was to be divided, and the de-
fendant caused the pearls to be sold in China, and received the
proceeds after the bankruptcy of the bankrupt ; the assignees
brought an action for money had and received against the de-
fendant, to recover the third of the proceeds due to the bankrupt;
and the Court of King's Bench held that the defendant might
set off against such third share a debt due from the bankrupt;
since there was a trust between the two, and that made a mutual
credit.

But where cloths were deposited with the defendant, a fuller,
to dress, by a party who afterwards became a bankrupt, it was
decided, after argument, and a full consideration of the judg-
ments of Lord Hardxxiicke, and of all the decisions on the subject,
that the defendant was not entitled to retain them for a general
balance due from the bankrupt, the case not being one of mu-
tual credit within the meaning of the statute ; the legislature
intending such credits only as must in their nature terminate m
cross debts: as where a debt is due from one party, and credit
given by him on the other, for a sum of money payable at a future
day, and which will then become a debt; or where there is a de"
on one side, and a delivery of property, with directions to turn i
into money, on the other : but where there is a mere deposit
property, without authority to turn it into money, no debt c
ever arise out of it, and therefore it is not a cretlit within th^
meaning of the statute. j

This construction of the statute has been recognized in the
subsequent decisions. In order to constitute a mutual credit by

deliveiy

(K) Setting off, arbitrating, and compounding Debts,

G51

Bolland v.
Nash, S Barn.
& C. 105.
See Ex parte
Hale, 3 Ves.
jun. 304.
Ex parte
Burton,
1 Hose, 320.

delivery of goods, it was held in one case not necessary that the
goods should be delivered into the hands of the party to whom
the credit was given ; it was sufficient if they were placed under
his authority, so that he was entitled to call upon the persons in
actual custody of them for an account.

A guarantee against contingent damages was held, under the Sampson v.
former acts, not to constitute a credit within the statute, so that Burton,
in an action brought upon it by the assignees of the bankrupt a ^Brod.&Bing.
debt due from the bankrupt could be set off against it. claim would

perhaps now be proveable as a contingent debt under the 56th section of 6G.4. c. 16., and
might consequently be set off under (J 50.

Where Nash kept cash with Marsh and Co. bankers, and ac-
cepted a bill drawn by one of the partners in the firm, and the
partner indorsed it to the firm, who discounted it, and then
indorsed it for value to S. Before the bill became due, M. and
Co. became bankrupts, having funds in the hands of 5. more
than sufficient to pay the bill, and having in their hands money
belonging to A. When the bill became due S. presented it for
payment to A., who having refused payment, S. paid himself the
amount out of the funds of M. and Co. remaining in his hands,
and delivered the bill to their assignees. In an action brought
by the assignees against A., as acceptor of the bill, the court
held, there had been, before the bankruptcy, a mutual credit
between the bankrupts and A., and that the latter was entitled
to set off against the sum due to the bankrupts on the bill, the
debt due to him from M. and Co. at the time of their bank-
ruptcy.

The right to set off on the ground of mutual credit under the
statutes of bankrupt has been even held to attach in several cases
where the bankrupt and the other party had expressly dealt on
a footing excluding the set-off. Thus, where the bankrupt
bought of the defendant a parcel of goods, for which he gave a
bill at six months, and four months afterwards purchased another
parcel, for which he gave a like bill; the first bill being dis-
honoured, the bankrupt deposited with the defendant good bills
exceeding the amount of the first bill, and the defendant expressly
promised to pay the surplus over to the bankrupt when such de-
posited bills should be paid, and it was not in contemplation of
the parties that the defendant should receive more than the
amount for the first parcel out of the deposited bills. After the
money was received on these bills the bankruptcy took place ;
and in an action by the assignees to recover the overplus of the
deposited bills, it was held that the defendants had a right to
detain it to meet the acceptance of the bankrupt not yet due for
the second parcel of goods, on the ground of a mutual credit
within the statute.

But in a case where a bill was deposited with the bankrupt
expressly for the purpose of raising money for the bankrupt, and
not on the general account, and the defendant refused to discount
it, but advanced money on it, and promised to advance more, the
assignees, after tendering the amount advanced by the defendant

Atkinson v.
Elliott, 7 Terra
R. 378.
Chalmers v.
Page, 3 Bam.
& A. 697.
M'GUlivray v.
Simson,
9 Barn. & C.
746. noti.

Key V. Flint,
8 Taunt. 21.
1 Moo. 451.

652 BANKRUPT.

Ex parte on the bill, were held entitled to recover the bill in trover against

^c:"'' R ^^^^ defendant; Dallas J. saying, that mutual credit must mean
5Q * ■ mutual trust, and that this attempt of the defendant to retain the

30.; and see bill was a gross breach of trust. And the Lord Chancellor, on
Buchanan v. the same case coming before him on petition, held the same
Bindley, opinion; observing, that the use the petitioner sought to make of

738. acc'^ ' ^^^ ^^^^ ^'^^ contrary to natural equity. ||

Wilkins V. [^ demand against a bankrupt cannot be set oflP in an action

Carmichael, by his assignees for trover and conversion, subsequent to the
Dougl. 97. bankruptcy, of effects belonging to the bankrupt estate.
Gibson v. A company incorporated by charter, or act of parliament,

Hudson s Bay cannot prevent the assignees of a bankrupt from selling any
1 Stra^64'5. stock he is entitled to on account of a demand they may have
1 Eq. Ca. against the bankrupt, for the rule relating to mutual credit does

Abr. 9. not apply to this case. But, if there is an express bye-law to

subject the stock of each member to satisfy the debts they may
owe to the company, they are at liberty to hold it, and to account
only for the balance.
Bishop V, Debts due in different rights cannot be set off.]

Church, 3 Atk, 691.

Sli Der V U -^ '^^^^ ^^ ^ P^^ty ^^ surviving partner may be set off against

Slidstone, ^ debt due from him in his own right, and e converso.

5 Term R. 493. Frencli v. Andrade, 6 Terra R. 582.

„. , A debt due from an executor on his own account cannot be

Bishop V. ^ cp • 111 I •

Church 3 Atk. ^^' O" agamst a debt due to his testator.

691. Willes, 103.; et vide 2 P. Wms. 150.

Ex parte Nor can a debt due from a bankrupt to a married woman

Blagden, ^^^^^ ^^^^ j^^ g^j. ^^p ggaifjgt ^ jgij^ jyg from her husband to the

19Ves. 465. ; , , »

and&ee2Esp. bankrupt.

Ca. 594. As to retaining a legacy to wife to satisfy a debt due from the husband to the testa-
trix, see Ex parte O'Fariall, 1 Glyn & Ja. 34. Ranking v. Barnard, 5 Madd. 32.

P . -Kfii -^ debt due to the defendant as trustee for another cannot

16 EastR. i3o! ^^ s^t off against a debt due from him in his own right.
This case was decided principally on the ground of fraud.

Ex parte But in equity debts may sometimes be set off which do not

htephens, f^^^ within the law on the subject, for that court was in posses-

Ex parte' ^^°^ of the doctrine of set-off, as grounded on principles of

Hanson, equity long before the law interfered ; though where the court

i2Ves.346. ; does not find a natural equity going beyond the statute, the

467 Ts^V^^^* construction is the same in equity as at law. Thus, where

232*. 3 Meriv. ^ ^^^J employed her bankers to lay out money in navy an-

618. 3 Madd. nuities, and they, without doing it, fraudulently represented to

205. her that they had done so, and accounted for the dividends, and

she afterwards joined with her brother as his surety in a note to

the bankers. Lord Eldon, on the ground of the J? and, allowed

the joint debt on the note to be set off against the debt from the

bankers to the lady, giving her leave to prove for the residue, and

restraining the assignees of the bankers from proceeding on the

note against her or her brother.

6G.4. c. 16. By 6 G. 1. c. 16. § 88. " The assignees, with the consent of the

§ 88. « majoi

(L) Of the Distribution to be made of the Bankrupt's Estate. 653

" major part, in value, of the creditors who shall have proved, pre- [Creditors
" sent at any meeting, whereof twenty-one days' notice shall have cimnot give a
" been given in the Gazette, may compound with any debtor to the S^"^"?! powe r
" bankrupt's estate, and take any reasonable part of thedebt in dis- subrnTfrnatters
" charge of the whole, or may give time or take security for pay- to arbitration
*' ment of such debt, or may submit any dispute, between such as- at their own
" signees and any persons concerning any matter relating to such J^'^^retion ;
*' bankrupt's estate, to the determination ofarbitrators, to be chosen y^^. ^ meeting
" by the assignees and the major part, in value, of such creditors, of creditors"
" and the party with whom they shall have such dispute, and the "pon notice in
" award of such arbitrators shall be binding on all the creditors ; ^°^'^}^^' *°
" and the assignees are thereby indemnified for what they shall particular
" do, according to the directions aforesaid, and no suit in equity case, i Atk.
" shall be commenced by the assignees without such consent as ^i. |)1.59.]
" aforesaid : provided, that if one third in value, or upwards, of 1^^^^^^?!^*^
" such creditors shall not attend at any such meeting {whereof no-- arbitration by
" tice shall have been given as aforesaid), the assignees shall have assignees with-
*' power with consent of the commissioners, testified by writing ?"* ^ Potest
" imder their hands, to do any of the matters afwesaid." \\ sLn" of assets.

Robson V. , 2 Rose, 50, The clause in italics is new.||

(L) Of the Distribution to be made of the Bank-
rupt's Estate.

iiTI Y the 6 G. 4f. c. 16. § 106. it is enacted, " that the commis- 6 G. 4. c. 16,

" sioners shall, at the meeting appointed for the last ex- § ip6.

*' amination of the bankrupt, appoint a public meeting, not ^"'^ important

" sooner than four calendar months from the issuing of the com- jf the commis^

" mission, nor later than six calendar months from the last sioners make a

*' examination of the bankrupt, whereof and of the purport fraudulent

" whereof they shall give twenty-one days' notice in the London "''■tnbution, it

" Gazette, to audit the accounts of the assignees ; and the aside in Chan-

" assignees at such meeting shall deliver, upon oath, a true state- eery. 2 Vem.

" ment in writing of all money received by them respectively, i-'s. 162. For

" and when and on what account, and how the same have ^ ^^^^^

" been employed ; and the commissioners shall examine such i^ggn q^

" statement, and compare the receipts with the payments, isEliz. c. 7.

" and ascertain what balances have been from time to time in vidc2Co.26.

" the hands of such assignees respectively, and shall enquire ? ^?^

" whether any sum, appearing to be in their hands, ought to be g Sid' 177.'

" retained ; and it shall be lawful for the said commissioners to Godb. 195.

" examine the said assignees upon oath touching the truth of How distribu-

" such accounts ; and in such accounts the said assignees shall f'°" ^^}^

^ liG under m

" be allowed to retain all such money as they shall have ex- joint commis-

" pended in suing out and prosecuting such commission, and sion taken out

" all other just allowances." against part-

ners, vide
Chan. Ca. 139. 2 Vem. 293. 706.

And by section 107. (taken from 5 G. 2. c. 30. § 33. {a),) it is § 107.

enacted, " that the commissioners shall, not sooner than four, II[") ^ '.^® °"'y

" nor later than twelve calendar months from the issuing t|,at"i,y "h"

" the

654f

BANKRUPT.

former acts « the commission, appoint a public meeting, (whereof and of

the assignees « ^j^g purport whereof they shall give twenty-one days' notice

the dividend. " *" *^^ hondon Gazette^) to make a dividend of the bankrupt's

[b) Before the " estate, at which meeting all creditors who have not proved

present statute « their debts shall be entitled to prove the same; and the said

if a debt was

improperly

proved, it was

necessary to

petition the

Lord Chancel-

commissioners, at such meeting, shall order such part of the
net produce of the bankrupt's estate in the hands of the
assignees as they shall think fit to be forthwith divided
amongst such creditors as have proved debts under the com-
, mission (6), in proportion to their respective debts, and shall

it ; but by the " make an order for a dividend in writing under their hands,
60th section " and shall cause one part of such order to be filed amongst the
" proceedings under the commission, and shall deliver another
" part thereof to the assignees, which order shall contain an ac-
" count of the time and place of making such order, of the
" amount of the debts proved, of the money remaining in the
" hands of the assignees to be divided, of how much in the pound
" is then ordered to be paid to every creditor, and of the money
" allowed by the commissioners to be retained by the assignees,
" with their reasons for allowing the same to be so retained ;
*' and the assignees, in pursuance of such order (and without
" any deed or distribution made for that purpose) shall, forth-
*' with make such dividend, and shall take receipts, in a book
" to be kept for that purpose, from each creditor, for the divi-
" dend received by such creditor ; and such order and receipt
" shall be a discharge to every such assignee for so much as he
" shall pay pursuant to such order ; and no dividend shall be
" declared, unless the accounts of the assignees shall have been
" first so audited as aforesaid, and such statemeht delivered by
" them upon oath as aforesaid."

made to the commissioners. See ^xparfe Whitchurch. 7(i. 91. Co. Bankrupt Laws, 588 ]
IJThe Lord Chancellor may postpone the dividend beyond the time limited, but it must be for
the general benefit of the creditors, ^x/jar/e Kendal, 17 Ves. 514. 1 Rose, 7l.|| [Assignee
cannot stop creditor's dividend on account of his own private debt due from such creditor.
1 Atk. 90. But quaere of this? and see Ex parte Nockold, 29th June 1754. Co. Bankrupt
Laws, 590.] ; |jand see Ex parte Whitehead, 1 Giyn & Ja. 39. || [Upon affidavit of creditor
that he has not read the Gazette, he will be admitted so as not to disturb former dividends;
and commissioners cannot proceed to make a second till he is brought up equal to the creditors
under the first, provided he hath obtained an order for that purpose. 1 Atk. 209. \[Ex parte
Long, 2 Bro. C. C. 50. In re Wheeler, I Scho. & Lef 242. ace. An order of dividend sepa-
rates the dividend from the bulk of the estate, and it is afterwards at the risk of the creditor if
he neglects to apply for it. Ex parte Powell, 1 Mont. & Mac. 285. If an assignee sign checks
for a dividend, and deposit them in a desk from which they are fraudulently taken by a clerk,
it seems the assignee is liable to the creditor. Ex parte Griffin, 2 Glyn & Ja. 114.; and see
Ex parte Grant, 1 Mont. & Mac. 77.||

And by section 109. (taken from 5 G. 2. c. 30. § 37.), it is en-
acted, " that if the bankrupt's estate shall not have been wholly
" divided upon the first dividend, the commissioners [a) shall,
" within eighteen calendar months after the issuinjT of the com-
" mission, appoint a public meeting (whereof and of the purport
" whereof they shall give twenty-one days' notice in the London
** Gazette\ to make a second dividend of the bankrupt's estate,
** when all creditors who have not proved their debts may prove

« the

of6G.4.
c. 16. the com-
missioners
have this
power on ap-
plication of
the assignees
or creditors. II
[The Chancel,
lor will not
interfere till
the four
months have
elapsed.
Cooper v.
Pepys, 1 Atk.
111. And it
seemeth
doubtful whe-
ther he will
interfere until
application
hath been

§ 109.
(a) Instead of
" the assign-
ees" as in the
former act.

im\

(L) Of the Distribution to be made of the Bankrupt's Estate. 655

" the same ; and the commissioners at such meeting, after takincr
" such audit as hereinbefore directed, shall order the balance
" in the hands of the assignees to be forthwith divided amongst
" such of the creditors as shall have proved their debts ; and such
" second dividend shall be final, unless any action at law or suit
" in equity be depending, or any part of the estate be standing
" out not sold or disposed of, or unless some other estate and
*' effects of the bankrupt shall afterwards come to the assignees,
" in which case they shall, as soon as may be, convert such
" estate and effects into money, and within two calendar months
" after the same shall be so converted, divide the same in manner
" aforesaid/' II

[If a creditor has obtained an unfair possession of the bank- Ex parte
rupt's property, his share of the dividend may be retained until Smith, 3 Bra.
he gives up the property of which he hath so possessed himself.] Chan. R. 46.

II Formerly assumpsit would lie for a dividend under the order Brown v
for payments, but by the 1 1 1th section of 6 G. 4. c. 16. (following Bullen, Dougl.
the 49 G.S. c. 121. § 12.), no action is to be brought against "^07.
assignees for the dividend, but the Lord Chancellor may, upon x, ^'.*^*'^'
petition, order payment with interest and costs of the application, i^q "' ^t".

Eldon, 1 Rose, 4.58.

On this petition the assignee cannot dispute the debt, since he Ex parte
could not have done so at law on an action being brought; but ^'^eside,
he must present a separate petition for that purpose. Ex parte At-

kinson, 3 Ves. & B. 13. Ex parte Loxley, Buck, 456,

The order for payment of the dividends on a petition raises a Ex parte
personal responsibility in the assignee, and if he resist, it is at his Graham,
personal risk. ^ ^**^^» ^^^'

To obtain interest on the petition an application to the assignee Wackerbarti
for the dividend must be shewn. v. PoweTl,

Bock, 508,

By the 110th section of 6 G. 4. c. 16. if any assignee shall e G. 4. c.\s.
have in his hands, order, or disposition any unclaimed dividend § no.
amounting to 50/. and shall not, within two months from the ^hisisnew.
expiration of one year after the order for payment of the divi-
dend by the commissioners, either pay it to the creditor or cause
a certificate to be filed in the office of the secretary of bankrupts,
containing a full account of the name of the creditor and amount
of the dividend, such assignee shall be charged interest on such
dividend from the time that such certificate is directed to be
filed, at the rate of Bl. per cent, per annum, and also such further
sum as the commissioners shall think fit, not exceeding 20/. per
cent, per annum; and the Lord Chancellor or commissioners
may order the investment of any unclaimed dividends in the
public funds or on government security for or on account of the
creditor; and if the same shall remain unclaimed for the space
of three years, the Chancellor may order the same to be divided
amongst the other creditors.

Ry the 33 G. 3. c. 54. § 10. it is enacted, " that if any person 33 G.3. c. 54-
" appointed to any office by any friendly society, and being § *^"
" intrusted with monies or effects belonging to such society,
" shall become bankrupt, his assignees shall, within forty days

" after

656

"Ex parte Lan-
caster Amica-
ble Society,
6 Ves, 98.;
and see Id.
441. 804.
15 Ves. 280.
Buck. 214.

6G.4. c. 16.
§ 112.

(fl) In the

5 G. 2. C. 50.
5 1. the of-
fences were
stated con-
junctively, so
that it was
held that if
the bankrupt
surrendered it
was no felony
to refuse a dis-
closure. The
words of the
present act are
disjunctive.
See Rex v.
Page, 1 Bro. &
B. 308.
{b) See Cul-
len, B. L. 343.
1 Deacon 514.
(c") 20/. in
5G. 2. C.30.
§1.

Alexander
Thompson, an
embroiderer
by trade, was
convicted for
not surrender-
ing though his
time had never
been enlarged,
and was exe-
cuted in the
beginning of
the year 1756.

BANKRUPT.

** after demand made by order of such society, deliver all thin^
" belonging to such society to such person as the society shall
" appoint, and pay out of the assets of such person all sums qf
" money remaining due and received by such person in virttifi
" of such office, before any other debts are paid or satisfied." j .
This clause only extends to money in the hands of persoiw
duly appointed officers of the society, and not to bankers or k
persons to whom money has been lent by the society ; nor doi^
it apply to money in the hands of an officer of the society if le^il
to him, or remaining in his hands on security. || i

(M) How the Bankrupt is to demean himself; ana
herein of the Crime in not appearing, and dis-^^
covering his Estate, and the Privilege he is to enjoy^
dining his Attendance.

Y 6 G. 4. c. 16. § 112. (taken from 5 G. 2. c. 30. § I. and '

1 G. 4. c. 115. § 1.) it is enacted, " that if any person against

" whom any commission has been issued, or shall hereafter be

" issued, whereupon such person hath been or shall be declared

*' bankrupt, shall not, before thjee of the clock upon the forly-

" second day after notice thereof in writing to be left at the usual

" place of abode of such person, or personal notice in case such

" person be then in prison, and notice given in the London

" Gazette of the issuing of the commission, and of the meetings

" of the commissioners, surrender himself to them, and sign or

" subscribe such surrender and submit to be examined before

" them from time to time upon oath, or being a Quaker, upon

" affirmation (a) ; or if any such bankrupt upon such examin-

" ation shall not discover all his real or personal estate, and

" how, and to whom, upon what consideration, and when he

** disposed of, assigned or transferred any of such estate, ard

" all books, papers, and writings relating thereto (except such pait

" as shall have been really and boiiajide before sold or disposed in

" the way of his trade (i), or laid out in the ordinary expense of

" his family) ; or if any such bankrupt shall not upon such ex-

*' amination deliver up to the commissioners all such part of

" such estate, and all books, papers, and writings relating there-

" unto, as be in his possession, custody, or power (except the

" necessary wearing apparel of himself^ his wife, and children);

" or if any such bankrupt shall remove, conceal, or embezzle

" any part of such estate to the value of ten pounds (c) or up-

" wards, or any books of accounts, papers, or writings relating

" thereto, with intent to defraud his creditors, every such bank-

" rupt shall be deemed guilty of felony, and liable to be trans-

" ported for life, or for such term, not less than seven year^,

" as the court before which he shall be convicted shall adjudge,

" or shall be liable to be imprisonetl only, or imprisoned ard

" kept to hard labour in any common gaol, penitentiary, or

" house of correction, for any term not exceeding seven years. '

[On a petition to Ld. Hardwiche, that the clerk of the coromission might >e

order ;'

(M) How the Bankrupt is to demean himself, S^x. 657

ordered to attend at the Old Bailey with the proceedings upon a prosecution against the bank-
rupt for felony in not surrendering, his Lordship said, that a court of equity will not lend its
aid to such a prosecution ; but that the petitioner must go on in such manner as the law pre-
scribes to prove him a bankrupt and a felon within the meaning of the act of parliament.
1 Atk. 221. Lord Macclesfield, his Lordship added, in several instances superseded the com-
mission in order to prevent such a prosecution where a bankrupt did not surrender himself in
due time ; and there did not appear any intention in him to defraud his creditors. Id 222.]
||And the same was done where the bankrupt had surrendered to a joint commission, but
omitted, under wrong advice, to surrender to a separate one. Ex parte Lavender
IsVes. 18. 1 Rose, 55. Richard Town, a tallow-chandler by trade, was convicted for
concealing his effects, and was the first person who suffered capitally by the bankrupt laws ;
he was executed 12th Dec. 1712. John Perrott was convicted of a like concealment, and
executed in Nov. 1762. Vide 2 Burr. 1216. t|It will be seen that by the present law (which
follows the 1 G. 4. c. 11 5. $ I .), the punishment is transportation for life, or not less than seven
years, or imprisonment for any term not exceeding seven years.jl

And by §113. (taken from 5 G. 2. c. 30. § .3.) it is enacted, §ii3. [Ifbya
« that the Lord Chancellor shall have power, as often as he shall ^Xult oTtf
" think fit, from time to time to enlarge the time for the bank- bankrupt, he
" rupt's surrendering himself for such time as the Lord Chan- has neglected
" cellor shall think fit, so as every such order be made six days to surrender
" at least before the day on which such bankrupt was to sur- """^^'^ on ..iie
" render himself." theChancellor

( may upon petition make an order that the commissioners appoint a new day for taking the
' ttamination. i?x /?ar^c Graham, 2 Bro. Chan. R. 48. Ex parte Bould, Id. 49. Ex parte
Smith, Co. Bankrupt Laws, 521. Ex parte Rogers, Ambi. 307. Ex parte Grey, 1 Ves. jun.
195. Ex parte White, 2 Bro. Chan. R. 47. But such order will not avoid the effect of the
statute ; it is only declaratory of the opinion of the court that the bankrupt had no intention
I of keeping out of the way fraudulently. It therefore recites the special circumstances of the
case. See the above authorities.] \^Ex parte Ricketts, 6 Ves. 445. Ex parte Higginson,
12 Ves. 496. Ex parte Jackson, 15Ves. 119. ; and see Ex par^e Dawson, 2 Cox. 48. Ex
I parte Parr, 1 Mont. Dig. B. L. 115. An application for this purpose should be upon the peti-
j tion either of the bankrupt or the assignees. Fuller's case, 10 Ves. 183. In one case it was
on the joint petition of the commissioners and assignees. Ex parte Grey, 1 Ves. jun. 195.
The consent of the assignees is not always necessary. Ex parte Shiles, 2 Rose, 381. 1 Madd.
241. It is irregular in the assignees to obtain an tx parte order if the bankrupt is ready to
attend. 1 Glyn & J. 281.; and see Deacon B.L. c. 13. § 1.

And by § ll*. it is enacted, " that it shall be lawful for the § 114.
" commissioners before the choice of assignees, and after such ^'^'^ section, is
" choice for the assignees, with the approbation of the com-
" missioners testified in writing under their hands, from time to
j " time to make such allowance to the bankrupt out of his estate,
' " until he shall have passed his last examination, as shall be
" necessary for the support of himself and his family."

And by § 115. (taken from 5 G. 2. c. 30. § 14.) it is enacted, ^115.
" that if any bankrupt apprehended by any warrant of the (a) Instead of
" commissioners (a) shall, within the time hereby allowed for » judge's war-
" him to surrender, submit to be examined, and in all things former act ^
" conform, he shall have the same benefit as if he had volun-
" tarily surrendered."

And by § 116. (taken from 5 G. 2. c. 30. § 36.) it is enacted, ^ us.
" that the bankrupt after the choice of assignees shall (if thereto
" required) forthwith deliver up to them upon oath, before a
*' master ordinary or extraordinary in Chancery, or justice of
" the peace, all books of accounts, papers, and writings relating
" to his estate in his custody or power, and discover such as
" are in the custody or power of any other person ; and every
Vol. L U u « such

6dS

BanK:rupT.

** such bankrupt not in prison or custody shall at all times ai
*' such surrender attend such assignees upon every reasonablr
" notice in writing for that purpose given by them to him, or
" left at his house, and shall assist such assignees in making
*' out the accounts of his estate ; and such bankrupt after he shall
" have surrendered, may at all seasonable times before the exi- '
*' piration of the said forty-two days, or such further time as
" shall be allowed to him to finish his examination, ins|>ect hi^
" books, papers, and writings in the presence of his assignees
** or any person appointed by them, and bring with him each
** time two persons to assist him ; and every such bankrupt after
•' he shall have obtained his certificate, shall, upon demand in
*' Writing given to him or left at his usual place of abode, attend
" the assignees to settle any accounts between his estate and
" any debtor to or creditor thereof, or attend any court of
*' record, to give evidence touching the same, or do any act
" necessary for getting in the said estate, for which attendance^
" he shall be paid five shillings per day by the assignees out of
" his estate ; and if such bankrupt shall, after such demand as
" aforesaid, not attend, or on such attendance refuse to do any
" of the matters aforesaid, without sufficient cause shewn to the
*• commissioners for such refusal, and by them allowed, the
*' assignees making proof thereof upon oath before the cora-
" missioners, the said commissioners may, by warrant directed
*' to such persons as they shall think proper, cause such bank-
" rupt to be apprehended and committed to such prison as they j
" shall think fit, there to remain until he shall conform to the
" satisfaction of the commissioners or of the Lord Chancellor."
And by § 117. (taken from 5 G. 2. c. 30. § 5.) it is enacted,
" that the bankrupt shall be free from arrest or imprisonment
" by any creditor in coming to surrender ; and after such sur-
" render during the said forty-two days, and such further time
" as shall be allowed him for finishing his examination, pro-
" vided he was not in custody at the time of such surrender ;
" and if such bankrupt shall be arrested for debt, or on any
" escape warrant(a), in coming to surrender, or shall after his sur-
" render be so arrested within the time aforesaid, he shall, on pro-
" ducing the summons under the hands of the commissioners to
" the officer who shall arrest him, and giving such officer a copy
" thereof, be immediately discharged ; and if any officer shall
" detain any such bankrupt after he shall have shown such
" summons to him so signed as aforesaid, such officer shall for-
" feit to such bankrupt, for his own use, the sum of five pounds
" for every day he shall detain such bankrupt, to be recovered
" by action of debt in any court of record at IVestminster in the
" name of such bankrupt, with full costs of suit." (6)

allows him to surrender in. Nevertheless, if a bankrupt be abroad, and upon his return wfth
an intention to surrender, be arrested on his landing before he can conveniently make bis
surrender, the privilege shall extend to him ; hut it must appear that he was actually going xo
surrender. Kenyon v. Solomon, Cowp.l 56. Co. B. Laws, 142. A bankrupt may be taken, aiid
surrendered by his bail within the time of privilege ; for this act is no protection but against tlie
suits of creditors. Ex parte Gibbons, 1 Atk. 258.1 ; Hand see Ex parte Leigh, 1 GIvn & Ja. 264.

Bit

§117.
(fl) This
means an es-
cape warrant
at suit of a
creditor.
1 Barn. & Aid.
5]l.(i)[This
is a particular
privilege to
enable the
bankrupt to
surrender;
and until ac-
tual surrender,
confined to
the act of his
going with that
view ; not a
general privi-
lege during the
whole time
which the act

(N) Surplus of Estate, and Allowance to Bankrupt. C59

But the court will enlarge the time for the bankrupt to surrender, in order that he may first finish
his examination. Maude v, Jowett, 5 East, 145. Glendinning v. Robinson, lTaunt.320. Offley
V. Dickins, 6 Maul. & S. 349. Where the bankrupt has escaped from prison, he may be re-taken
by the officer in the time of privilege. Ex parte Johnson, 14 Ves. 36. Anderson v. Hampton,

1 Barn. & A. 308. If he is in prison at the time of the adjudication he is not protected from
subsequent detainers. Ex parte Goldie, 1 Meriv. R. 1 76. a Rose, 343. ; unless the original arrest
is bad, in which case the detainers fall to the ground. Ex parte Hawkins, 4 Ves. 69 1 . Ex parte
Ross, 1 Rose Ca. 262. Ex parte Moore, Buck's Ca. 521.; but see contra, Barclay v. Faber,

2 Barn. & A. 743. The bankrupt is entitled to his discharge, though the commissioners omit to
indorse the adjournment on the summons. Price's case, 5 Ves. & B. 23. ; he is protected dur-
ing the whole of the forty-second day. Ex parte Donlevy, 7 Ves. 317.; and so, also, notwith-
standing the debt on which he is arrested was not proveable, not being due at the bankruptcy.
Darby v. Baugham, 5 Term R. 209. And the privilege extends to an attachment for not paying
money on an award made a rule of court. Ex parte Parker, 3 Ves. 554. ; but not to a debt due
to the crown. Ex parte Temple, 2 Rose, 22. ; but he is protected at common law from such debt
while he is actually attending the commissioners, or going or returning. Ex parte Russell,
I Rose, 278.; and this common law privilege seems to extend to any attendance of the bank-
rupt at any time under the commissioners* summons. Arding v. Flower, 8 Term R. 534.; and
to a voluntary attendance bond fide to be examined. Ex parte Ross, 1 Rose, 260. And so
although he is deviating from the road at the time of his arrest, if he is honH fide going to be
examined. Ogle's case, 11 Ves. 55Q. See Deacon B. L. c. 13. § o.\

(N) Of the Surplus of the Estate, and the Allowance
to be made to tlie Bankrupt : and herein of his Dis-
charge and Certificate.

llgY § 128. (in place of 5 G. 2. c. 30. § 7. & 8.) it is enacted, 6 G.4. c. 16

" that every bankrupt who shall have obtained his certi- %y^^'

• 1 nc suins &rc

" ficate, if the net produce of his estate shall pay the creditors double those

" who have proved under the commission ten shillings in the in the former

** pound, shall be allowed five per cent, out of such produce to statute.

" be paid him by the assignees, provided that such allowance ["ankrupts^are

" shall not exceed four hundred pounds; and every such bank- allowance un-

" rupt, if such produce shall pay such creditors twelve shillings der this act,

" and sixpence in the pound, shall be allowed and paid as till a^jzcr/ divi-

" aforesaid seven pounds ten shillings per cent., provided such j^,'* made,

^ and tnev nave

" allowance shall not ex-ceed five hundred pounds; and every had their cer-

** such bankrupt, if such produce shall pay such creditors fifteen tificate. i Atk.

** shillings in the pound or upwards, shall be allowed and paid 208.] HSee

" as aforesaid ten pounds per cent., provided such allowance i* ?l'e

*' shall not exceed six hundred })ounds ; but if such produce 287. And if

" shall not pay such creditors ten shillings in the pound, such the fund is

♦* bankrupt shall only be allowed and paid so much as the exhausted

" assignees and commissioners shall think fit, not exceeding i'5'°''f '{^^ ^^'■-

,, , » , 1 1 1 I I I » ° tificate the as-

three pounds per centum and three hundred pounds. sii-nees are not

liable. Groome v. Potts, 6 Term R. 548. || Tiie allowance is a vested interest, and transmissible
to the bankrupt's representative. Ex />«;•/<? Trap, 1 Atk. 208. Ex parte Calcot, Id. 209,

3 Atk. 814. S. C] l|According to the words of the above section the interest docs not
actually vest in the bankrupt till a dividend is declared. Ex parte Salford, ) Deacon, 546.
It is not necessary, however, that the bankrupt should be alive at the time of the declaration
of the dividend. Ibid. ; or that he should actually have obtained the commissioiierb' order for
his allowance. 1 Atk. 209. ; for where the bankrupt died before his estate paid 105. in the
pound, the Vice-Chancellor, after that dividend had been declared, ordered tne assignees to
pay the allowance to the bankrupt's personal representative. Ex parte Salford, «uy>;-^.||
[The same person is not entitled to a double allowance ; one, in respect of a joint,
and the other, in respect of a separate estate. Ex parte Bate, Co. Bankrupt Laws, 592.
Nor does the statute give a distinct allowance of 300/. to each partner, when joint ere-

U u 2 ditors

660

BANKRUPT.

ditors are paid 15s. in the pound. Ibid.] IJAnd before the 3G.4. c. 81. § 12. if one partner
only obtained his certificate no allowance was due to him. Ex parte PoweW, 1 Madd. 6S(.,
this was altered by that statute, which was followed by the l'29th section of the present actj;
but both the joint and separate creditors must receive a sufficient dividend. Ibid.; and sqe
Ex parte Thurlow, 1 Rose Ca 4'Jl. Ex parte Ferrell, Buck, 345. Ex parte Holmes, 2 Roie
Ca. 95. The bankrupt's right to his allowance will be preferred to the claims of creditors for
interest in the event of a surplus. Ex parte Morris, 3 Bro. C.C.79. 1 Ves. jun. 132.||

§ 129.

§ 152.
(a) Bills and
notes will fall
within this
latter class,
and not the
former, since
although in-
terest is reco-
verable on
them as dama-

By § 129. (in lieu of 3 G. 4. c. 81. § 12.) it is enacted, " that
*' in all joint commissions under which any partner shall have
*' obtained his certificate, if a sufficient dividend shall have been
" paid upon the joint estate and upon the separate estate of
" such partner, he shall be entitled to his allowance althougli his
" other partner or partners may not be entitled to any allowance."

And by § 132. (in lieu of 5 Eliz. c. 13. § 4. and 1 Jac. 1. c. 15.
§ 15.) it is enacted, " that the assignees shall, upon request
" made to them by the bankrupt, declare to him how they have
" disposed of his real and personal estate, and pay the surplus,
" if any, to such bankrupt, his executors, administrators, or
" assigns, and every such bankrupt, after the creditors who have
" proved under the commission shall have been paid, shall be

entitled to recover the remainder of the debts due to him; but

the assignees shall not pay such surplus until all creditors who

ges at law they « have proved under the commission shall have received interest
upon their debts, to be calculated and paid at the rate and m
the order following ; that is to say, all creditors whose debts
are now by law entitled to carry interest, in the event of a sur-
plus, shall first receive interest on such debts at the rate of in-
terest reserved or by law payable thereon, to be calculated from
the date of the commission, and, after such interest shall have
been paid, all other creditors who have proved under the com
mi.ssion shall receive interest on their debts from the date of
the commission, at the rate of four pounds per cent." {a)

terest beyond the penalty of a bond, see Eden's B. L. 567.

Where the debts have been fully paid and there is an ov^
plus consisting of real and personal estate, the personal estate i^
first to be applied to payment of interest on debts carrying
interest, and if that is deficient the real estate must come in aid.
Scott, 5 Madd. But where there is real and personal estate more than sufficient
to pay the debts with interest, and the bankrupt is dead, the sur-
plus real estate must be conveyed to his heir, and tiie personal
estate among his next of kin.

Before the present statute, all creditors by bond or con-
tract, or note, carrying interest on the face of it, or wheJe
interest was allowed by the course of dealing, were entitled to
interest out of the estate before the bankrupt could receive the
surplus.

Now by § 132. (above) all creditors whatever are entided p
interest according to the rates therein specified.

Separate creditors are not entitled to interest till the joii t
creditors are paid 20s. in the pound.
Ex parte Clarke, 4 Ves. 677.

Up<

were not held
entitled to in-
terest out of
the surplus
before this act.
Ex parte
Kork, 1 Ves.
& B. 342.
J Rose, 317.
Ex parte Wil-
liams, Id. 599.;
and as to in-

Bromley v.
Goodere,
1 Atk. 80. Co.
B.L. 514 ; and
see Banks v.

Co. B.L. 514
Eden's B. L.
567.

Ex parte
Boardnian,
1 Cox, 275.

(N) Surplus of Estate, Allowance to Bankrupt, (Certificate.) 661

Upon the principle that a partner jointly liable with the estate Ex parte

of his copartner can never stand in competition with their joint ^'^^^■> 9 Ves.

creditors, it is decided that the joint creditors are entitled to t^fen* "b'^lT

interest on their debts in preference to the right of the co- 369."* '
partner to prove against his partner's estate.

Creditors are not prevented claiming interest by having Fx parte

signed a receipt in full under a mistaken impression. Deey,'2Ball&

If one partner is bankrupt under a separate commission and Ex parte hnn-
have the surplus of the joint and separate estate paid to him, fear, i Rose, "
the other partner may apply by petition for an account and pay- 442.
ment of his share, and the Chancellor can make such an order,
and the petitioner is not driven to a bill.

A bankrupt pending the proceedings has a right to inspect Twogood
the proceedings in respect of the surplus, but he will not be Swanston,
allowed to surcharge and falsify in the master's office accounts ^ ^^*' '*^^'
settled long ago ; though palpable errors, specifically pointed out
on petition, may be rectified.

Of the Certificate ; and herein^

1. Of granting, staying, and refusing the Certificate.

By 6 G. 4. c. 16. $ 121. (taken from 3 G. 2. c. SO. § 7. and ^ ^.^'♦- c-^«-
46 G. 3. c. 135. §4.) it is enacted, " that every bankrupt ^
" who shall have duly surrendered and in all things conformed
" himself to the laws in force concerning bankrupts at the time
*' of issuing the commission against him, shall be discharged
" from all debts due by him when he became bankrupt, and
** from all claims and demands hereby made proveable under
" the commission, in case he shall obtain a certificate of such
" conformity so signed and allowed, and subject to such provisions
" as hereinafter directed ; but no such certificate shall release
" or discharge any person who was partner with such bankrupt
" at the time of his bankruptcy, or who was then jointly bound
" or had made any joint contract with such bankrupt."

And § 122. it is enacted, (taken from the 5 G. 2. c. 30. § 10.
and 49 G. 3. c. 135. § 18.), " that such certificate shall be signed
" by four-fifths in number and value of the creditors of the
" bankrupt who shall have proved debts under the commission
" to the amount of twenty pounds or upwards («), or after six (n) If there is
" calendar months from the last examination of the bankrupt ^rcj^j^o" 'J^ust*'
" then either by three-fifths in number and value or by nine-tenths ^y,^ f^^ s„ph
" of such creditors, who shall thereby testify their consent to the fraction.
" said bankrupt's discharge as aforesaid ; and no such certificate 1 Christ. B. L.
" shall be such discharge unless the commissioners shall, in writing ^^•^^^- ? 'j.^,jf,y^
" under their hands and seals, certify to the Lord Chancellor that jq '„„ jngpec-
" such bankrupt has made a full discovery of his estate and tion in orJcr
" effects, and in all things conformed as aforesaid, and that to ascertain
" there does not appear any reason to doubt the truth or fulness ^J^jy^j **^^
" of such discovery, and also that the creditors have signed in j^„,.,g Morgan,
" manner hereby directed, and unless the bankrupt make oath 1 til) n & ja.
" in writing that such certificate and consent were obtained ^o'*

U u 3 '• without

66^2

BANKRUPT.

(A) The power
to refer to the
judges is
omitted.

§ 124.

" without fraud, and unless such certificate shall after such oat|
" be allowed by the Lord Chancellor (6), against which allo\
" ance any of the creditors of the bankrupt may be heard befoi
" the Lord Chancellor."

And by § 124. (taken from 5 G. 2. c. 30. § 10. and 24 G.
c. 57. § 10.) it is enacted, " that the commissioners shall ncH
" sign any certificate unless they shall have proof by affidavit in
*' writing of the signature of the creditors thereto, and of any
*' person thereto authorized by any creditor, and of the authority
" by which such person shall have signed the same ; and if
" any creditor reside abroad, the authority of such creditor
" shall be attested by a notary public, British minister, or
*' consul ; and every such affidavit, authority, and attestation,
" shall be laid before the Lord Chancellor with the certificate
" previous to the allowance thereof."

By § ] 30. (taken widi alterations from 5 G. 2. c. 30. § 12.) it b
enacted, " that no bankrupt shall be entitled to his certificate
" or to be paid any such allowance, and that any certificate, if
100/. to a child " obtained, shall be void if such bankrupt shall have lost by any
" sort of gaming or is:agering (c) in one day twenty pounds, or
" within one year next preceding his bankruptcy two hundred
" pounds ; or if he shall, within one year next preceding his
" bankruptcy, have lost two hundred pounds by any contract for
" the purchase or sale of any government or other stock where
" such contract was not to be performed within one week after the
" contract, or where the stock bought or sold was not actually
" transferred or delivered in pursuance of such contract, *or shall,
" after an act of bankruptcy committed, or in contemplation of
*' bankruptcy, have destroyed, altered, mutilated, or falsified, or
" cause to be destroyed, altered, mutilated, or falsified, any of
" his books, papers, writings, or securities, or made or been privy
" to the making of any false or fraudulent entries in any book of
" account or other document with intent to defraud his credi-
" tors ; * or shall have concealed property to the value of ten

pounds or upwards; * or if any person having proved a false debt,

under the commission (</), such bankrupt being privy thereto or

§ 130,
The clause as
to advancing
more than

on marriage is
omitted,
(c) These
words are in-
stead of the
enumeration
of games in the
former act,
which it was
decided did
not comprize
insuring in the
lottery. Lewis
V. Piercy, 1 H.
Black, 29.; nor
keeping a lot-
tery-office.
Hx parte
Richardson,
Co. B, L. 555.
The clauses
•within aste-
risks are new.
(rf) The party
proving may b

" afterwards knowing the same shall not have disclosed the same

*' to his assignees within one month after such knowledge." *
a witness to prove the fraud. Edmonson v. Webb, 3 Esp. Ca, 264, ; sed qii.

and see as to proving fictitious debts, Ex parte Laffert, 1 Rose, 330, Freydeburgh's Ca. 5 Ves.

&Bea. 142.

A debt which entitles a creditor to sign the certificate must
be such a one as would entitle him to a dividend. ||

[An executor may sign the certificate ; but a person who hath
a debt in his own right and another debt as executor, cannot
sign in each distinct right, for to this purpose both are considered
as his own particular debt. If the property of the princip«.l
creditor upon his death devolves upon the bankrupt, the bank-
rupt himself may sign the certificate; for otherwise his person
could never be released, as no one else is or can be qualified \o
simi it for him.]

104.

Ex parte
Buckrer, Co.

B.L. 459.

Ex parte
Saumarez,
i Atk.85.

Green, 260,

(N) Surplus ofEstaley Allowance to Bankrupt. (Certificate.) ^^

II One partner may sign the certificate for another, and the {a) Ex parte
other would be bound by such signature even after a dissolution Mitchell,
of partnership [a); and so also one cc»-executor may sign for the 15 ^'*^- ^^^
other {b\ but not one trustee for the other (c); nor can a parly i^'y^ea " '
who has assigned his debt sign without the authority of the (b) Powell v.
assignee, (r/) A receiver cannot be allowed to sign though he may Evans, 5 Vcs.
prove [e) ; and it seems that an executor, who is bankrupt and ^"9- ^) ^f
creditor on his own estate, in his capacity of executor cannot ^^{ose '224.'
sign his certificate, {g) {d) Ex parte

Taylor, 1 Glyn & J. 399. (e) 1 Glyn & J. 151. (g) Id. 163.; and see further, as to signature
of the creditors, Eden's B. L. 574, Deacon B. L. c. 14. § 1.

A creditor who has proved, and is fully paid by a surety, Ratcliffe v.
cannot afterwards sign the certificate, {h)^ fi'M^dd' 193

[A certificate allowed in the bankrupt's lifetime may be con- 1 Atk. 77.
firmed after his death, for it deriveth its operative force from the ^""^^P ^'
consent of the creditors, and when confirmed hath relation to ^ .p^^^ |^
the time when such consent was given ; but the relation doth 561. Tredway
not operate so as to defeat an execution, or to vest in the bank- v. Bourn,
rupt effects coming to him between the signing and allowing of 2Burr.7i6.
the certificate.

It hath been said that a mandajmis will not lie to compel the 1 At^- 82.
allowance of the certificate, for it is discretionary, first in the
commissioners and afterwards in the Lord Chancellor, to grant
or refuse it acccording to the behaviour of the bankrupt.]

II It has been determined by Lord Eldo7iy after elaborate discus- -^•*.f"g'*'j[y"^'
sion, that the judgment of the commissioners on this point is not g ^^ I'gVes.
subject to the controul of the Lord Chancellor, who cannot isi.S. C.
compel them to sign it, nor to state their reasons for refusing,
though he may recommend them to review their judgment.

Nor will the Court of King's Bench grant a mandamus : but it 7 East, 92.
is certainly the duty of the commissioners, under their oath, if ""^^-
the bankrupt has acted conformably, to certify; and whether seph'^Tkose"
he has so acted is alone what they have to consider. || Ca. loo. See

1 Ves.&B.47. 1 Rose, 190. 15 Ves. 126.

[The Chancellor, having the power of granting or refusing ^J^ parte Wil-
the certificate, can of course postpone it; and this he will do if 82"2°Ves 249
creditors live at a distance, in order to give them an opportunity ExparteSau-'
of coming in and proving their debts. marez, 1 Atk.

Or if the commissioners seem to have been over-hasty in sign- JdUi.
ing it. But he will not stay it in order to give a creditor an II £"' parte
opportunity of proving his debt who does not account for the ch^R^/g
delay in not applying earlier. Ex parte '

Smith, 1 Glyn & J. 195. Ex parte Dyson, 1 Rose, 67. ; and see Ex parte Birch, 1 .Madd.
600., where the delay was excused on circumstances. See Ex parte Bentley, 2 Cox, 218.
Ex parte Warwick, 14 Ves. 138. Ex parte Heath, 6 Ves. 613. Ex parte Cockayne, 2 Rose,
233.11

Nor upon the application of creditors whose demands are Ex parte

not liquidated, but depend on an account to be taken, especially Johnson,

if ihey do not swear to a balance in their favour; for unless a ('^f^jSj.^'^'^^^j''

person prove a debt, or shew reasonable ground for a claim, he Whitehurch^

U u 4 is

664 BANKRUPT.

1 Glyn & J. is not competent to assert to or dissent from the certificate]]
71. lix parte [jXhe certificate may be stayed on petition of a mortgagee if

2 Christ. B.L. swear that a balance would be due after sale of the premises [a
501. (6) Ex or on petition of a partner of the bankrupt until the partnership
^ar/e Hadley, accounts are taken (6) ; but not now on petition of a creditor
!,^- ,\ x^' having the bankrupt in custody on execution, or who has not
parte Dodson, come in under the commission, and has the means ot trying tnje
Buck, 225. Ex validity of the certificate at law (c); nor on petition of a creditcfr
;jar/<?Enderby, ^Ijq tampers with the bankrupt, {d) A creditor under 20/. may
ifptrt'e Lord, P^^^^^" ^^^ ^his purpose, (e)

2 Rose, 421. Ex parte Blaydes, 1 Glyn & J. 179. (<f) Ex parte Paterson, 1 Rose, 40£.
(e) Ex parte Allen, 7 Vin. Ab. 134.

The certificate may be stayed either on application to the
discretion of the court in cases where, if granted, it would be
good, or on any of those legal objections which would invalidate
Ex parte Ken- Jt at law, if granted. Though the court will not grant a certificate
"~V \ Y ^V which, when granted would be void, yet it requires it to appear
B. 193. Ex clearly that there has been a violation of the law, because, by
parte Hall, withholding the certificate, it withholds an opportunity of having

1 Rose, 3. its validity tried before a jury.

Ex pai-teVien- Where the bankrupt on his last examination admitted a loss
derson, Buck, Qf 5/^ J^t ^ horse-race, the court, on petition to stay the certificate,

directed an issue to try the fact.
Ex parte A loss of twenty pounds in a day by gaming invalidates the

Newman, certificate, thoueh on the same occasion the bankrupt wins more

2 Glyn & J. . ^, , , <=> ^
32f,/ than he loses.

Ex parte Though the court will not in general grant a certificate which

Thompson, jg invalid at law, yet it is not a good ground of opposition that
ose, 8 . ^^ bankrupt was uncertificated under a former commission ; for
though the certificate would be inoperative, the court, if circum-
stances required, would interfere by injunction to give it effect.
Ex parte Where the certificate is disputed on the ground of conduct

Scott, Buck, amounting to felony, the court will not direct an issue.

275. . .

Ex parte ^^ ^'^^ "^^ ^^ stayed on the ground that the commissioners

Black, 1 Rose, have not certified that the bankrupt has been bankrupt before,

60. Ex parte nor that there is a petition pending to supersede the commis-

Bonsor, gj^„^

2 Rose, 61.

Ex parte Gib- Where a commission is taken out under a wrong description,

son, 6 Ves 5. the Lord Chancellor will stay the certificate till advertisements

have been inserted for the creditors.
Ex parteKmg, Though formerly held otherwise, Lord Eldon has twice de-
ll Ves. 426. cided that there being no dividend is only a circumstance against
Ex parte Cun- ^jjg bankrupt, but not a conducive reason for staying the certi-
2 Mont. Dig. "cate. ,

152. As to the practice on petitions to stay certificate, see Eden's B. L. 579. Deacoi ,'
c. 14. § 4.

2 Rose, 187. I" certain cases (as for instance where obtained by fraud) the

ExparteC&w- certificate will be recalled, and this has been done although ths
thorne^igVes. bankrupt has been in possession of it two and three years; but
TeUis i^BaU ^ ^ ^^^^^ ^^^^ m\.\s,i be made out, and such applications are ndt

encourage^

(N) Surplus of Estate, Allowance to Bankrupt. (Certificate.) Q^S

encouraged, and will not be granted if third parties will be & B. 321.
prejudiced ; and a certificate cannot be got rid of in every case ^^ P'"'^
in which it can be stayed. & j!t'i9.^'Sr

parte Reed, Buck, 430. Ex parte Mawson, 6 Ves. 614.
And by § 125. (taken from 5 G. 2. c. 30. § 11.) it is enacted, § 125.
" that any contract or security made or given by any bank- K°) ^^^ Sum-
" rupt or other person unto or in trust for any creditor (a), or "^h^ bi t'^'
" for securing the payment of any money due by such bankrupt 647. Robsony.
" at his bankruptcy, as a consideration or with intent to persuade Calze, Doug.
" such creditor to consent to or to sign such certificate, shall be 228. Jones v.
" void, and the money thereby secured or agreed to be paid gg^ ^^^'^ jj*-
" shall not be recoverable, and the party sued on such contract illegal for a
" or security may plead the general issue and give this act and creditor to

" the special matter in evidence." take, so it is

'^ tor him to re-

tain, money given him for signing the certificate. Smith v. Bromley, Dougl. 696. Cockshot
V, Bennet, 2 Term R. 766. An agreement to pay a sum of money to the assignees if they will
sign the certificate, is within the letter and reason of this clause. Dougl. 695.] ||But if there
are suflicient creditors in number and value signing previous to the creditor so induced, it
seems the certificate will be good. Philips v. Dicas, 1 5 East, 248. Eden, 385. Whether the money
is paid with or without the knowledge of the bankrupt the effect is the same. Holland v. Palmer,
1 Bos. & Pull. 95. Ex parte Butt, 10 Ves. 360. Ex parte Hall, 17 Ves. 63. But where the
payment was unknown to the bankrupt, the Lord Chancellor cancelled the certificate, that
the bankrupt might obtain a new one. Ex parte Harrison, cited Buck, 227. n. A bill of
exchange given to a creditor to induce him to sign the certificate, is void in the hands of an
innocent holder. 3 Carr. & P. 379.11

2. Of the Effect of the Certificate, and the Mode of taking
Advantage of it.

And by § 126. (taken from 5 G. 2. c. 30. § 7.) it is enacted, § ^26.

*' that any bankrupt who shall, after his certificate shall have

" been allowed, be arrested, or any action brought against him

" for any debt, claim, or demand hereby made proveable under

" the commission against such bankrupt, shall be discharged

*' upon common bail (a), and may plead in general that the [(a) If there i»

*' cause of action accrued before he became bankrupt, and may ""^ ^Pl?^^''* ,

" give this act and the special matter in evidence {b), and such "^^ ^j^g par" of

" bankrupt's certificate and the allowance thereof shall be the bankrupt

" sufficient evidence of the trading, bankruptcy, commission, and the court will

" other proceedings precedent to the obtaining such certificate; pot interfere

" and if any such bankrupt shall be taken in execution, or de- ^^ ^^ '

" tained in prison, for any such debt, claim, or demand, where Vincent v.

" judgment has been obtained before the allowance of his cer- Brady, 2 H.

" tificate, it shall be lawful for any judge of the court wherein "'«<^'^. 1. Sow-

• .1 . lev V jonps 2

" judgment has been so obtained, on such bankrupt's producing Black. R,725.1

" his certificate, to order any officer who shall have such bank- ||And any of
" rupt in custody by virtue of such execution to discharge such the grounds in
" bankrupt without exacting any fee, and such officer shall be ^.'^°* '"^Jf be
" hereby indemnified for so doing." the dis^arce,

and wherever the validity of the certificate is disputed, the court will not relieve with-
out giving an opportunity to try r.n issue. Stacuy v. Federici, 2 Bos. & Pull. 590. Wooler
V. Leicester, 6 Taunt. 75. Nowers v. Coleman, Buck's Ca. 5. Kemp v. Neville, 5 Moo. 21.
Lester v, Mundell, 1 Bos. & Pull. 427. And as the case ought to be perfectly clear on a
summary application, the court will not decide on motion on the effect of a foreign bankruptcy.

Quin

666 BANKRUPT.

Quin V. Keefe, 2 Hen. Black. 553. Philpotts v. Reed, 1 Bro. & B. 13. 3 Moo. 244.1| [(i)The de-
fendant may plead thus generally, without stating that he hath conformed according to the bank-
rupt acts. Willan v. Geordini, Tr. 17R2, B. R. The case of Paris v. Salkeld, 2 Wils. \o9. coiil.
denied to be law. He must be careful to state, that the cause of action accrued before the bank-
. ruptcy, l|and must plead according to the form given in the statute.|| Charlton v. King, 4 Term
R. i 56. As this plea concludes to the country, the plaintiff may give the special matter, on which
the action is brought, in evidence, to shew that he is not barred by the certificate ; for i'.
opens the whole merits of the question in evidence on both sides. Aisop v. Price, Dougl. 160.
This point, however, hath been questioned by high authority ; and it hath been thought, that
the plaintiff should set out in his declaration, \\qucere replication,|| the matter of which lu'
wishes to avail himself] ||But it is now settled that the several matters which avoid the effect
of the certificate may be given in evidence on the similiter to the general plea of bankruptcy,
and that a special replication is bad. Wilson v. Kemp, 2 Maule & S. 549. Hughes v. Morley,
1 Barn. & A. 22.; but the commission cannot be impeached, — only the certificate. Bateson
V. Hartsinck, 4Esp. Ca. 4.3. The bankruptcy and certificate cannot be given in evidence on
the general issue, but must be pleaded according to the statute. Gowland v. Warren, 1 Camp.
362. Stedman v. Martinnant, 12ELst, 664. 13 East, 427. The plea must be delivered, not
filed. Henderson v. Samson, 2 Barn. & A. 392., and in the K. B. need not be signed. Leigh
v. Monteiro, 6 Term R. 496. ; aliter in C. B. Pitcher v. Martin, 5 Bos. & Pull. 171. Under the
act of 5 G. 2. it was settled that the certificate might be pleaded in bar, if obtained, any time
before plea, though subsequent to the commencement of the suit. Harris v. James, 9 East, 82.
contrary to the opinion expressed in 6 East, 416.; but qiicere, whether the words in the pre-
sent statute, § 1 26. " after his certificate shall have been allowed " would not render it
necessary to have the certificate before suit. The words in 5 G. 2. c. 30. § 7. were difft;rent.
If a commission issues against a man by a wrong name, if he obtains his certificate he may
plead it in bar to an action against him in his right name, shewing that he is the same party.
Stevens v. Elizee, 3 Camp. 255. By the present statute the certificate, in order to be evidence
must be entered of record according to §§ 125, 126.||

§ 127. And by § 127. (taken from 5 G. 2. c. 30. § 9.) it is enacted,

(a) The words <« that if any person who shall have been so discharged by such
of the 5 Ct 2. « certificate as aforesaid, or who shall have compounded with

c 50. V 9" . •

were " shall " ^^^^ creditors, or who shall have been discharged by any
" remain liable " insolvent act, shall be or become bankrupt, and have ob-
«' to his credi- « tained or shall hereafter obtain such certificate as aforesaid,
" f°'^ th " ""^^^^ ^^^ estate shall produce (after all charges) sufficient to

« makin" of " P^J every creditor under the commission fifteen shillings in the
« this act ; " " pound, such certificate shall only protect his person from arrest
which were a and imprisonment, but his future estate and effects (except his
construed to^^ n ^qq\^ of trade, and necessary household furniture, and the wear-
estate re- " i"o apparel of himself, his wife and children,) shall vest in the
mained liable " assignees under the said commission, xa-ho shall be entitled to seize
to the claims « ^/^^ same in like manner as they might have seized ^property oj
of the ^"'\"^'- " >which such bankrupt was possessed at the issuing of the commis-
who might sue " sion." {a)\\

for them, and did not vest in the assignees under the commission. Hovill v. Browning,
7 East R. 154.; and see 1 Rose, 452. 2 Rose, 172. igVes. 291. ; but see 2 Christ. B. L. 529.
The consequence was that a third commission might be supported, although 15^. in the pound
were not paid under the second (or under the first after an insolvency or composition). The
words of the present act obviate this inconvenience. As to third commissions anterior to the
1st of September 1825, see (J 195.

Horsey's case, [As to the eifect of the certificate, it discharges the bankrupt
sP. VVms.25. fiom all debts, both joint and separate, that might have been
sey 1 Atk. 67. P^'o^ed under the commission; therefore, it discharges a bank-
Wickes V. rupt from a debt accruing before the act of bankruptcy, though

Strahan, judgment is not obtained till after the certificate allowed.

2Stra. 1157. '' ^

Eje parte As where a bankrupt had given a bail-bond to the sheriflf

which

(N) Sutyius of Estate, Atlowance to Bankrupt. (Certificate.) 667

which was forfeited before the bankruptcy for nonappearance, Simpson,
and an action was brought upon this bail-bond, but judgment ^ ^^^- i^s.
not obtained till after the certificate allowed; the court held ^^ P°''^^
there was a breach, and that the penalty was forfeited, and there- 2 Vern.^696
fore the debt was due, though execution could not be taken out Hlackall v. "
for more than the damages. 1 Combs, 2 P.

^ Wms. 70.

Bouteflower v. Coats, Cown. 25. 2 Stra. 1042. Ca. temp. Hardw. 267. lIDinsdale v. Eames,
2 Bro. & B. 10 II

II And so also where the commission of bankrupt issued on Coulson v.
the 19th Ap7-il {b\ and the quarto die post of the return of the Hammon,
writ was on the 16th, the court held that the bail-bond was ^^e^^^'h^t^V A
forfeited on the quarto die post, and the penalty might have been ^^^ appear
proved, and was consequently barred by the certificate. when the act

of bankruptcy took place.

But where a bond was given by a trading member of parlia- Jameson v.

ment, pursuant to the 4 G. 3. c. 33. § 1. conditioned for payment Campbell,

of such sum as should be recovered by the plaintiff in an action ^ ^^^n. & A.

then pending against the defendant, together with costs, and efmr'^riSn""

judgment in the former suit was not given till after the bank- 520.;' and

ruptcy of the defendant, it was held that the bankruptcy and see 3 Barn. &

certificate could not be pleaded in answer to an action on such A. 273. Qu.

bond, since there was no forfeiture of the bond before the w^.^''^*^'" ^/'l'^**
, , „ debt would

bankruptcy.il now be con-

sidcred contingent within the meaning of § 56. of 6 G.4. c. Ifi., and in what manner could it
be valued; and see aiite, p. 601. as to proof of contingent debts.

[Again, Joties had employed Bird, who was an attorney, to re- Bird v. Jones,
cover a debt. Bird undertook the business, and recovered the ^ n'n^^'^*
money, but, as Jo?ies alleged, had not paid over to him tlie fair Bankrupt
balance, and in 1788 he applied to the Court of King's Bench, Laws, 566.
of which court Bird was an attorney, for the usual rule of refer-
ence to the master, on an undertaking to pay what should appear
due. Bird shewed cause, but the rule was made absolute; after
which, and before any proceedings upon it. Bird became bank-
rupt, and in 1 788 obtained his certificate. A rule was now ob-
tained to revive the former rules, but, on shewing cause, the
court discharged that rule, saying the certificate was a clear bar
to the demand. They also said, that after such lapse of time
the court would not proceed to give relief in a summary way.
The party might proceed as he should be advised.

So if a person enters into a bond with a trader as a surety for Martin v.
him, and, for his own indemnity, takes a counter-bond payable Court, 2 Term
the day before the first ; though the trader become bankrupt be- ^* ^'*°- H^"'
fore either of the bonds be payable, the party may yet prove his ^ jg c'^^ •
bond under the commission.] and atUe,

p. £03. as to proof by sureties.||

II And the certificate is a bar, not only to any claim by the Van Sandau
surety for the original debt paid for the bankrupt, but also to a ^' ^^'^^^'ip' .
claim for consequential damage arising from the nonpayment '"^^' *
by the bankrupt. Thus, where the acceptor of an accommodation
bill sued the drawer, who had become bankrupt, for not pro-
viding

668

BANKRUPT.

Walcot V.
Hall, 2 Bro.
Ch.Rep. 305.

Miles V. Wil-
iams, 1 P.
Wms. 249.

Cantrel v.
Graham,

viding him with funds to pay the bill when due, whereby he in-
curred the costs of an action, and was obliged to sell an estate
in order to raise money to pay the bill, the certificate was held
a bar. II
Johnson v. [^.^ wanting money, prevails with B. to lend him his name,

Spiller, Dougl. ]^y endorsing his note to be discounted at the bank ; and givqs
fE^as to debts him, as a security, a debenture, making it negotiable. B. pledges
proveable.H the debenture with another person, for money advanced to hin^.
A. pays the note at the bank, and soon afterwards B. be-
comes a bankrupt, and then A. redeems the debenture by payini^
the money, for which it remained a pledge. This is a deljt
proveable by A. under i3.'s commission, and discharged by the
certificate.

If an executor becomes bankrupt, a vested legacy, thougti
liable to be devested, may be proved under the commission, and
is, of course, discharged by the certificate.

The certificate is a bar to an action brought a<;ainst the hus"
band for a debt due from the wife clum sola, because by the
marriage it becomes a debt due from the husband.

In an action of dcbi for rent, the certificate will be a bar, be-
cause the assignment of the lease by the commissioners is con-
Barnes, 69. So sidered as an assignment by the assent of the lessor, all persons
reddendum of being supposed to consent to an act of parliament, by the
a lease. Wad- authority of which the commissioners assign the bankrupt's pro-
ham V. Mar- perty; and therefore, as the bankrupt is no longer in the enjoy-
o^C ■- n R "^^"^ °f 'he thing demised, debi does not lie for the rent.

Mills V. Auriol, 1 H. Black. 43.5. Seeks of covenant for nonpayment of rent. Ibid. |lBy the
49 G. 3. c. 121. the bankrupt was discharged in case the assignees accepted the lease, and now
by § 75. of the 6 G. 4. c. 16. he is also discharged in case they decline, provided he give up
the lease within fourteen days after notice of their declining ; and if the assignees will neither
accept nor decline, the lessor may petition the Chancellor who may make an order on them.
Qu. If the assignees neither accept nor decline, and if the lessor does not choose to petition,
how is the bankrupt to be discharged ? As to what is an acceptance, see ant^, p. 619.||

Baker's case. If a man be attached for nonpayment of money in obedience to
2 Stra. 1152. an award, and afterwards becomes bankrupt, the certificate en-
CowrT 136*^^*' ^^^^^^ ^^"^^ '° his discharge; for as the act discharges the duty, it
Watt V. ' would be hard to detain the person.

Atkinson, Cooper's R. 198. And so in case of attachment for non-payment of money pur-
suant to a rule of court. Rex v. Edwards, 9 Barn. & C. 652. And if an attorney has received
money as an attorney, and af'terwards has become bankrupt and obtained his certificate, the
court will not compel him to pay over the money ; for if an action were brought the certi-
ficate would be a bar. Ex parte CuUiford, 8 Barn. & C. 220.|1

Davis V.

Shapley,
1 Barn. &
Adol. 54.

Ballantine v.
Golding, Mich.
24 G. 3. B.R.
The bankrupt
laws are now
adopted in

II The discharge under § 121 . a«/^, p. 661. extends to the goods
as well as the person, and where a certificated bankrupt's goods,
acquired after the bankruptcy, were seized under an execution
for a debt due before the bankruptcy, the court set aside, the
execution. II

On a motion to enter an exoneretur on the bail-piece, it ap-
peared, that the defendant had been a bankrupt, and obtained
a certificate under the ffreat seal of Ireland. The oritrinal de-
mand arose upon a bill of exchange drawn in Ireland, and.pay-
able by the defendant who resided there. Lord Mansfield said.

(N) Surplus of Estate, Allowance to Bankrupt. (Certificate.) 669

it is a general principle, that where there is a discharge by the Ireland. Ex
law of one country, it will be a discharge in another; that he P°''^^ Burton,
remembered a case in Chancery of a cessio honovum in Holland, use aclrit
which is held a discharge in that country, and it had the same R.53. 55.H
effect here. The rule was enlarged, and was afterwards made
absolute by consent, the counsel giving it up upon the authority
of Bunvws V. Jemino.~\

II What Lord Mansfield says as to the discharge by the law of
one country being a discharge in another, means a discharge by
the law of the country *wJiere the debt is contracted. This, by
the comity of nations, is held a discharge every where.
* Thus where the defendant gave the plaintiff (both being resi- Potter v.
dent in America) a bill of exchange, drawn by the defendant on Brown, 5 East
a person in England, and the bill was protested for nonaccept- '
ance ; the defendant having become bankrupt, and obtained his
certificate according to law in America, was held entitled to plead
it in bar to an action brought against him by the plaintiff on the
bill in England ,• for when the plaintiff agreed to take the bill in
America, the promise of the defendant in effect was, to pay the
money in America if it was not paid in England.

And so also the courts in Scotland have held, that the certifi- Royal Bank of
cate under an English commission will bar the debts of Scotch Scotland v.
creditors, if they are 'proveable under the English commission. Cuthbert,

and see Selkrig v. Davis, 2 Id. 291.

But if the debt is contracted in one country, and the dis-
charge and certificate are obtained in another, they are no bar
to a suit for the debt in the country where it was contracted.
Thus, where the cause of action accrued to the plaintiff in this ^^\^\^ y^
country, it was held to be no bar to an action here that the de- Buchanan,
fendant, at the time of the cause of action, was inhabitant in the i East R. 6.;
state o^ Mai-yland, and that he had obtained his discharge from 55*^ ^^^ V'*'*
all liis debts under a commission of bankrupt against him in " '
that state.

So also where an accommodation bill of exchange was drawn Lewisv.Owen,
by the defendant in Ireland on the plaintiff in England, and ac- ^^4 " j .if*
cepted and paid by the plaintiff in England, the debt was held g^^p^g principle
to be an English debt arising where the bill was paid, and, con- is adopted in
sequently, that it was not discharged by the defendant's certifi- Scotland; see
cate under a commission of bankrupt in Ireland. ^^^ '*d^he

courts tlicre have held, that where the bill is payable in a particular country the debt is to be
considered a debt due in that country. Ibid.

Where the plaintiffs, planters at Demerara, had shipped sugars Odwin v.

to the defendant in London, for which they drew bills on the ^°'"'j*' ^f* wf

defendant, some of which the defendant accepted, and others the debt in this

he engaged by letter to accept, and the former were returned case is to be

protcstecl for nonpayment, and the latter for nonacceptance, and considered an

the defendant subsequently became bankrupt and obtained his I-"g^^'^^^ ||cbt

certificate, of which bankruptcy plaintiffs had notice, after which the'^bfus being

he went to Dcmcrara and was sued by the plaintiffs there for accepted and

the

670

BANKRUPT.

the sugars de- the debt ; it was held by the court at Dernerara, and affirmed by
K'^7'^d"th ^^^ Privy Council on appeal, that the bankruptcy and certificate
case iTcon- ^" England were a bar to the suit. (a)||

sistent with the principle of the former cases ; but Mr. Eden thinks the case only supportable
on the principle of the Dutch law (according to which the court professed to proceed), by
•which a Dutch discharge is a bar to foreign debts as well as Dutch debts. The privy council
lately decided, that a certificate under an English commission was a bar to a debt previously
contracted at Calcutta, though the creditor had no notice of the commission, and was resident
at Calcutta. Neither the arguments nor the grounds of the written judgment appear. Ed-
wards V. Ronald, 1 Knapp's P. C. Ca. 259. See as to discharge under a French commission.
Id. 266.
Palmby v.
Masters,
Barnes, 368.
Graham v.
Benton,
2 Stra. 1 1 96.
1 Wils. 41.
Blandford v.

Foote, Cowp. 138. Lewis v. Piercy, 1 H. Black. 29. IJScott v. Ambrose, 3 Maule & S. 326.
Dinsdale v. Eames, 2 Bro. & B. 8. Beeston v. White, 7 Price, 209. Ex parte Poucher,
1 Glyn & J. 585. Ex parte Hill, 11 Ves, 646. ; and see ant^, p. 591.1| (a) Calcraft v. Swan,
Barnes, 204.; and q^i. whether the courts would now put the party to that expense? || Where
a bankrupt who obtained his certificate between issue and judgment, was after judgment ren-
dered in discharge of his bail, the court liberated him on motion. Humphreys v. Knight,
6 Bing. 572. II

A certificate does not discharge a bankrupt fi^om a contingent
debt which has not been reduced to a certainty, because it can-
not be proved under the commission, and in questions, whether
a debt is discharged or not by a certificate, the point agitated

[A certificate obtained pending an action, but too late to be
pleaded, discharges the bankrupt from the original debt and
subsequent costs. But it hath been determined that if, after the
certificate, the bankrupt's goods are taken in execution, the court
will not proceed in a summary way (a), but put the party to his
audita querela.

Cowp. 25.
Stra. 668.
1043. 1160.
1 Atk. 119.
129. 3 Wils.
13. 2C2

Rex has always been, whether it could be proved or not ; the ere-
on, -- _ . -

1 Term R. 369.

v.J?.ggmgton, (Jitor's right to prove, and the bankrupt's right to be discharged

I|But now by ^^ ^^ certificate, being reciprocal and co-extensive.
§ 56. of 6 G. 4. c. 16. contingent debts are made provable, and are consequently barred by
the certificate, (an alteration desired by Lord Hardwicke, 1 Atk. 120., and Lord Eldon., 9 Ves.
1 10.) see ante, p. 601. It is not true (as before seen, aTit}, p. 590.) that the right to prove and
the discharge by certificate are co-extensive, since costs not provable are now in some cases
held to be discharged. See Ex parte Poucher, 1 Glyn & J. 385.; and on the other hand,
where a party has a double remedy (as for seizing and selling goods), one founded on a debt
for the money received, and the other on the tort for the seizure, though he might prove the
former, he may still sue in tort, and the certificate in such case will be no bar. Uttersoti
V. Vernon, 3 Term R. 548. Parker v. Norton, 6 Term R. 695. Parker v. Crole, 5 Bing,
65.11

Mayor v.

Steward,

4 Burr. 2443.

Ludford v.

Barber,

I Term R. 86.

II Bannister v.
Scott, 7 Term
R. 489. Ham-
mond V. Toul-
min, 7 Terra R.
614.; and see
anti.\\

Cockeril v.
Owston,
1 Burr. 434.

A certificate will not discharge the bankrupt from his owix
express collateral covenant which doth not run with the land.
Thus, on a covenant by the bankrupt to indemnify the assignor
against covenants contained in a lease, which lease was assigned;
to the bankrupt before his bankruptcy', for his sole benefit ; the
question was, whether the bankrupt's obtaining his certificate
would bar this action of covenant? The court were clearly of
opinion, that as this was not a case between lessor and lessee, bu^
a distinct, detached, collateral, independent covenant and con*
tract, and as the assignor could have no remedv under the com-f
mission, the bankrupt was not discharged by his certificate. '

The certificate obtained after judgment upon a bail-bona
against the bankrupt himself will not discharge the bail-bondj

althougK

(N) Surplus of Estate, Allowance to Bankrupt. (Certificate.) 671:

although it discharged the original debt, for it is a new and dis- »r^, .
tinct cause of action. I^IZTT

the relative times of the bankruptcy and the forfeiture of the bail bond. If the bankruptcy
happened before the forfeiture, i. e. before the quarto die post of the return in actions by ori-
ginal or before the return in actions by bill, then the bond, not being provable, the certificate
was no bar to an action on the bond ; — alith' if the quarto die post or return day was past
before the bankruptcy. See Dinsdale v. Eames, 2 Bro. & B. 8. Coulson v. Hamnion, 2 Barn.
& C. 626., and antk p. 663. ; but now the debt on the bail-bond appears to be proveable before
forfeiture as a contingent debt under § 56. of 6 G. 4. c. 16. and wquld appear, consequently,
to be barred in all cases; but qucere the mode of valuing such a contingency under this
section ?||

Bankruptcy is no plea in bar to an action of trespass for mesne Goodtitle v.
profits ; for where damages are uncertain, they cannot be proved elT g n"" •
under the commission. ^ Drinkwater.

2 Term R. 261. A demand in trover, if for a liquidated amount, may be proved. Dougl. 168.
But if A. lend stock to B., to be replaced as stock, without naming any particular day, and B,
become a bankrupt before any request by A. to replace the stock, A. cannot come in under
BS commission. Utterson v. Vernon, 4 Term R. 570. HThe late act has not altered the
law as to unliquidated damages, since they cannot be considered as debts payable on a contin-
gency within § SQ, See Boorman v. Nash, 9 Barn. & C. 145.||

A bankrupt executor pleading a false plea, after the commis- Howard v.

sion issued, is liable to execution for the costs ; for he becomes a , d,™^, ' ^„„
,,,,.„,, ... ' . 1,1 Black. 400.

debtor by his raise plea, which amounts to contracting a new debt

subsequent to the commission.

The crown not being affected by the bankrupt laws, the cer- Anon. Atk.

tificate will not discharge the bankrupt from a commitment 262.
under an extent.

The allowing of the certificate of a bankrupt will not discharge i Atk. 84. See

his sureties; and if they are forced to pay the debt after the Taylor v. Mills,

commission, the certificate will be no bar to their recovering it Youn" v. *

of the principal. Hockfey,

2 Stra. 1045. 1 Atk. 84.

But if a bankrupt obtains his certificate before his bail are vy i
fixed, it will discharge them. Secus, if not till after they are fixed. Cobbe i Burr.
244. Tudway v. Bourn, 2 Burr. 716. Walker v. Giblet, 2 Black. 812. JlBut now by 6 G. 4.
c. 16. § 52. the surety may prove though he pays the debt after the commission; and bail are
expressly named ; and see ante, p. 603. as to debts proveabIe.||

A certificate under a second ccTmmission will not protect future Thornton v.

effects, unless fifteen shillings in the pound are paid under the TJ* if;, ,? "°
, . . . ? 1- ^1 /. 1 I 46. CuUen,

second commission, notwithstanding the first lias been super- 394.1

seded ||by consent; for the creditors having accepted the dividend,

it is in fact a composition within the meaning of the statute.]]

But a certificate under a second commission, during the sub- j^^^jj^ y

sistence of the first, is a mere nullity.] O'Hara.Cowp.

823. Ex parte Proudfoot, 1 Atk. 252. Ex parte Brown, 4 Bro. Ch. R. 210.

II A iJiird commission is void, where the bankrupt has not paid Fowler v.
a dividend under the first and second. A certificate under such Coster, _
a commission will not entitle him to discharge as to a debt con- 407 tjii ^
traded before the commission. Wilson, 7 Id.

684. ; and see Todd v, Maxfield, 3 Id. 222.
A composition in order to affect the certificate under the Norton v.
second commission must be a composition for the benefit of all ^!j^*Pj^"®*

the "^ '

6'72 BANKRUPT.

Slaughter V. the creditors; and where a composition was confined to join.-
Cheyne, creditors only, it was held not within the statute. But if it era •

182 QiT Wife- ^^^^^ all the creditors, the circumstance of some of them noi.
ther the sub- coming in is immaterial,
sequent payment of the creditors in full after the composition will do away the effect of thu
composition on the certificate under the second commission? Reed v. Sowerby, 3 Maul j
& S. 78.

Gill V. Scri- In a scire facias on a judgment against a bankrupt who has

vens, 7 Term ^jggj^ twice a bankrupt, it is necessary for the plaintiff to aver on
leyv.Morlev, the record that the defendant has been twice a bankrupt, and
16 East, 225.' that his estate has not paid 155. in the pound; but the burdea
Edmondson V. of proving the affirmative, that the estate has paid 15^. in th^
Parker, 3 Bos. pound, or will pay it, seems to lie on the bankrupt. 11 !

& Pull. 187. r ' I- J T I 11

Jelfs V. Ballard, 1 Bos, & Pull. 467.; but now, instead of the future estate remaining liable tO
the suits of the creditors, it is to go to the assignees. 6 G. 4. c. 16. § 127. And under thit
clause It has been held that no action lies against a certificated bankrupt for a debt due beforis
the commiii»ion, though he has compounded with his creditors, and his effects have not prd-
duced 15s. in the pound. Eicke v. Nokes, 1 Moo. & Malk.303.

Ex parte Bur- [As the certificate dischargeth only such debts as are provable

ton. ^^^^- under the commission ; — as the statutes leave the bankrupt at

M ev /!f^67. li'^^^'^^y to enter into new engagements, and contract new debts;

Truman v. — ^^^ ^s the debts provable under the commission are, not- ^

Fenton,Cowp. withstanding the certificate, due in conscience, a new promise or

544. The pay- agreement by the bankrupt, to pay the whole or part of such
iUtere^t by the ^^^t' ^^^^ therefore be obligatory on him.]

bardrupt himself on a bond, will be such an admission as will make him liable on a new
debt. Alsop v. Brown, Dougl. 192. See too, Besford v. Saunders, 2 H. Black. 1 16. But if
the bankrupt promise to pay, when he is able, qucere whether it be not incumbent on the
plaintiff to prove his ability ?

l|But now, by the 6 G. 4. c. 16. § 131. no bankrupt shall be
liable on such contract, promise, or agreement made after the
issuing the commission, unless such contract, promise, or agree-
ment were made in xvritijig, signed by the bankrupt or by some
person thereto lawfully authorized by him.
Peers v. Gad- But it appears to be now settled, after conflicting decisions,
derer, 1 Barn, that the bankrupt cannot be arrested on any such subsequent
&C. 116.; promise, since the statute (§ 126.) declares, that if arrested for
5 Maule & S. ^^^^^ debt, he shall be discharged on common bail. ||
595.; but see Drew v. Jefferies, 8 Price, 531. Blackburne v. O^le, 8 Price, 526. coni. Qu.
Whether the words in the statute " arrested for such debt" properly apply to an arrest on a
new promise creating a new cause of action ? By a similar construction the bankrupt might
plead his bankruptcy if impleaded for such new cause of action, which he cannot do.

iP.Wms.386. [The certificate determines the power of the commissioners;

and, of course, incapacitates them from making a subsequent

assignment.
1 Atk. 145. The certificate may be entirely defeated by a supersedeas.

1 Vern. 208. And the writ of supersedeas may be issued at the discretion of.

sCh.Ca. 292. the Chancellor, when the creditors who have proved agree to
A V ~ ^^ supersede the commission; or because the party appears not to
146 2P Wms h^v^ been a trader, or was an infant, or had not committed an

545. 4Bro.Ch. act of bankruptcy, or that the commission was not opened till six
R. 432. months after it issued, or that it has not been prosecuted within

fifteen

(N) Surplus of Estate, Ailoxvmice to Bankrupt. (Certificate.) 673

fifteen clays from the date of it, if executed in London^ or within ||16 Ves. 4i6.
twenty-nine days, if in the country, or that he has paid all his ^ ^^^ '**'•
creditors. * 8Ves.533.1|

So if the petitioning creditor had not a legal debt to the amount g Black R

specified in the statute, or if his debt accrued subsequent to an 702. 1 Stra.

act of bankruptcy ascertained by a trial at law, or if it issued 653. 4 Bro.Ch.

ajrainst an uncertificated bankrupt, or on a debt barred by the •^•^lo^sWiU.

• •• •/^ • ■■ m 2711 V OS inn

statute of limitations, or if at the time it issued the petitioning ~g^[ •' '
creditor had the debtor in execution, or if it was fraudulently
issued — in which case, indeed, the court will punish the parties
concerned by commitment, and by making them pay the costs.

But upon an application to the Lord Chancellor, on the part 1 Atk. 102.
of the bankrupt, to supersede the commission upon a legal ob- Ex parte Gtd'
jection to it, if the case appear unfavourable (as if a great length j^g' jg-
of time has intervened between the issuing of the commission and
the application), the Chancellor will not grant an issue to try the
bankruptcy, but leave the party to bring his action. However,
if creditors apply to have the commission superseded, it seemeth
the Cliancellor will order the bankruptcy to be tried in an issue,
because they can have no action at law in which the validity of
tlie commission can be contested, as the bankrupt's certificate is
i|a conclusive bar against them, that of itself being evidence of the
fjcommission, Sj-c.

Though the usual course is for the Lord Chancellor to order Richardson r.
a feigned issue to try the bankruptcy at law, yet if the commis- fT u ,^0
sion appears plainly to have been taken out fraudulently and gia. Expatie
vexatiously, the court will at once supersede it, and order the Gayter, 1 Atk.
petitioning creditor's bond to be assigned. i*"*-

But where a commission is superseded merely because tliere Ex parte
s a defect in form as to the petitioning creditor's debt, and no Gloodwin,
loiibt as to the act of bankruptcy, the costs of the supersedeas
>iily shall be allowed; but it would be otherwise if tjie act of
)ankruptcy was not fully proved.]

[i By the 5 G. 2. c. 30. §2^. in cases where the petitioning sG. 2. c.50..
,:reditor com|X)unded with the bankrupt, the Lord Chancellor § ^^^
jtvas compelled to supersede the commission. But this is now
iltered by the eighth section of 6 G. 4. c. 16., by which the Lord
Chancellor is allowed either to supersede or continue the com-
mission in such case ; so that a discretion is now vested in the
l.ord Chancellor m all cases.

By the eighty-seventh section of the 6 G. 4-. c. 16. no title to Sees Ves. 53J.
•' , o "^ , ^ I 1 J *u • • 19 Ves. 204.

my real or pei-sonal property sold under the commission, or Buj,)j»s Ca.

uider any order in bankruptcy, shall be impeached by the 262. n, ; and

>ankrupt or any person claiming under him, in respect of any see, as to the

lefect in the issuing out of the commission, or in any of the ^Vf'^j^ , ^"v

)roceedings, unless the bankrupt shall have commenced pro- 515. Eden'»B.

• dings within twelve months from the issuing thereof.}) I^. 408.

Vol. 1. X K [(O) Of

07 i» BANKRUPT.

[(O) Of Partners. '

Allen V. A SEPARATE commission may issue against one partner

Hartley, M. without making the rest bankrupts. But where a joint

'J5G.3. B.R. commission is prosecuted, all the partners must be included; for

Co. Bankrupt ^ commission against two or more of several partners is neithor
Laws, 7. By . . ^ '=! ~, '■

the new act, jo^^ "or separate.]

§ 16. a joint creditor may sue out a commission against one or more partners, though it does
not include flf//.l| But by stat. 10 Ann. c. 1 5. § 5. the certificate, under a separate commis-
sion, will not discharge any other than the bankrupt partner from a joint debt. It was
formerly the practice to take out a separate commission against each partner, and then a joint
con)mission against all ; the Chancellor, upon recent application, directing the former to be
superseded, in order to give validity to the latter, under which both sets of creditors might
have their proper relief. 1 Atk. 98. 138. But itseemeth now to be holden,that whilst there
is a separate commission subsisting a joint one cannot be supported. Cowp. 824. 1 Atk. 2.33.
4 Bro. Ch. R. 210. Co. Bankrupt Laws, 9. [[Though the joint commission is in strictness a
nullify as to those partners against whom separate commissions have issued, yet if the bank-
rupt's estate will be benefited the Chancellor in his discretion will suspend or supersede the
separate commissions, and order the joint commission alone to proceed. 1 Cox. 397. 15 Ves.
115., and Glyn & J. 256. 8 Ves. 540. And the petitioning creditor under the separate com-
mission will in such case be indemnified for his costs. 1 Rose, 432. 1 Ves. & B. 60. And in
some circumstances a separate commission will be preferred, and a joint one superseded. See
1 Rose, 89. 17 Ves. 403., and Deacon, c. 5. § 4.|[

Ex parte |[As to what constitutes separate and joint debts from part-
Hamper, ners, see title " Merchant and Merchandize (Partners)."

17 Ves. 40o. jjj general, the rules respecting what amounts to a joint or to a
Matthews separate debt are the same at common law and under the

18 Ves. 125. Chancellor's jurisdiction in bankruptcy. On the subject of dor-
Ex parte mant partners there have been, however, some difference between
Hodgkmson, ^^^ decisions at law and those in bankruptcy. In bankruptcy ii
Dubois V. Lu- ^^^ been long the practice to hold, that where a creditor has nc
dert, 5 Taunt, notice of the existence of a dormant partner it is at his option
€09. S. C. to consider himself either as a separate or joint creditor ; but at

1 ^ars . 246. Y^Y, it has been held, that a partner sued alone may plead tht

IJut it secerns ^ l •/ r

now settled nonjoinder of a dormant partner in abatement. (»)([

that the non-joinder of a dormant partner cannot be pleaded. See 1 Stark. Ca. 340. 3 Id. 8

1 Moo. & Malk. 8S. (a) At law, notwithstanding the joinder of all partners, the plaintiff niaj
have separate executions against the estate of each j but in bankruptcy, where the debt i
joint, the creditor cannot come on the separate estate of each partner, unless in certain ex
cepted cases. See post, in this head.

Co. Bankrupt [Joint creditors are entitled to a distribution of the joint o:

Liaws, 297. partnership estate, without the separate creditors being permittee

to participate with them ; but notwithstanding separate creditor

Ex parte San- ^^^ "°^ entitled to share the dividend of the joint property, uiiti

don, 1 Atk. 68. the joint creditors have received twenty shillings in the pound

yet they are, upon petition, let in to prove their respectivi

Ex parte separate debts under the joint commission, paying contribiUioi

Crowder, to the charge of it : and as the joint or partnership estate is ii

2 Vern. 706. the first place to be applied to pay the joint or partnershi]
Boiid'^'i Atk debts, so in like manner, the separate estate shall be in the llrs
98. Ex parte place applied to pay all the separate debts. This is settled as
Rowlandson, rule of convenience ; and it is resolved, that if there be a surplu
5P.\Vms.405. of the joint estate, besides what will pay the joint creditors, tli
Fresnov same shall be allotted in due proportion to the separate estati^ "

(O) Of Partners. 675

such partner, and applied to pay the separate creditors. And Davies, 373.

if" there be on the other hand a surplus of the separate estate, ^^ P^^te

beyond what will satisfy the separate creditors, it shall go to Wms'soi'
supply any deficiency that may remain as to the joint creditors.

This mode of adjusting the rights of each class of creditors, Ex parte Yiau-

where a joint commission is taken out, seems at one time to dier, 1 Atk.98.

have been extended by the court into a rule, to direct the proof ^-^ P<^>''e Old-

of debts under a separate commission, by virtue of which the I'^o-V "^ '

1 1 • 111 n • 178.J, l^O.

separate estate onfy can be assigned; and therefore it was Bankrupt

holden, that joint creditors could not prove under such a com- Laws, 299.
mission, except for the purpose of assenting to or dissenting
from the bankrupt's certificate.

But it is now fully established, that joint creditors may be Ex parte
permitted to prove under separate commissions, and receive a r^ pJI'r

dividend in proportion with the separate creditors.] ExparteVase
Id. 119. Ex parte Flintam, 1 Bro. Ch. R. 120. Ex parte Hayden, 24tli JunellSS. Ex parte
Copland, 24th Dec. 1787.

II But subsequent to the cases in the text. Lord JRosslyn re- Ex parte EU
verted to the old doctrine, which had been departed from by ton, 3Ves.238.
Lord Tlmrlow in those cases, and adopted the principle, that the ^1^6(^4 Ves
joint creditors could not be permitted to receive a dividend 857. '
along with the separate creditors.

And Lord Eldon^ unwilling to change a rule so repeatedly Ex parte Clay,
acted upon, has followed Lord Rosslyn in several subsequent 6Ves. 8i4.
decisions, allowing the joint creditors to prove under a separate -^-^P'"'^" AI-
commission for the purpose of assenting to or dissenting from the 60.5. ' (a) See'
certificate, but not for the purpose of receiving a dividend [a) ; Mr. Christian's
and a provision to this effect is now contained in § 62» of the observations
new act. on this rule

and Its mconve-
veniences. 2 Christ. 36. He suggests that as each partner has to pay his private debts and his
proportion of the joint debts, his separate estate and his share of the joint estate should be
thrown together, and on that fund each joint creditor should prove his proper proportion of
his debt, and each separate creditor his whole debt, and that on such proofs they should
receive dividends equally. Certainly the present rule seems objectionable, since it is not in
fact, on the mere credit of partnership effects that partnership debts are contracted but in a
great degree on the solidity and credit of each individual partner: and bankers, brokers
factors, &c. contract large partnership liabilities with a very trifling amount of joint estate,
and see Evans' Bankrupt Stat. 211.

There are, however, exceptions to this rule ; first, in case of a Ex parte
joint creditor, who is petitioning creditor under a separate com- Taut, le Ves.
mission. As he is entitled to sue out a separate commission, „ '^' T^!r'^*
and as tfie commission is in nature 01 an execution for the Ex parte
petitioning creditor's debt, it necessarily follows that he must Crisp, 1 Atk.
take dividends with the other creditors ; and this although part |^'^: Ex parte

of his debt is as trustee for another ioint creditor who could , f„ ' 1 ,
,. 1^ . ,..11 •' ^^^' Ex parte

not limiself receive dividends. Ackerman,

14 Ves. 604. 7?jr />ar/ff DeTastet, 1 Rose, 10. 17 Ves. 247.

A commission against A. as surviving partner of B. is a joint Ex parte Bar-
and not a separate commission ; so that, under it, the petitioning ^^j' 5^9 ^!"
creditor cannot come on the separate estate. and see 6G.4.

j c. 16. § 62.

X x 2 A second

676 BANKRUPT.

Ex parte Sad- A second exception to the rule against joint creditors receivin,
ler, 15 Ve8.52. ^ dividend on the separate estate is, where there is no joint estat
Sykes, 2 Russ. ^^^ ^^ solvent partner. However small the joint estate is, thd
191. Ex parte rule applies ; as in one case where it only amounted to 1/. 1 Is. 6^/.,
Macliell,2Ves. unless indeed it is so situated as to be out of the reach of the
•/ P k ^ joint creditors. A partner is considered a solvent partner,
2 Rose, 54. * unless a commission of bankrupt has issued against him, what-
Ex parte WiW, ever maybe his circumstances. And though there is no joint
2 New R. 191. estate, if there is a solvent partner the joint creditor cannot
KeSngton, ^'^'"^ °" ^^^ separate estate.
14Ves. 447. Ex parte i^imotty 5 Madd. 229. Ex parte Virikexion, 6 Ves, 814. n.

A third exception is, where there are no separate debts, or
ChandLr where the joint creditors undertake to pay them. |1 .

9 Ves. 55.; and see Ex jmrte Hubbard, 13 Ves. 424. Ex parte Taitt, 16 Ves. 193. Ex partp',
Jones, 18 Ves. 283.

Hankev v [Where the assignees under a separate commission possesii'

Garrat, 3 Bro. themselves of the joint property, it may frequently be to the in-
ch. R. 457. terest of the joint creditors, that distinct accounts should be kept
Ex parte of the joint and separate estate, and each applied to the payment

May 1190 of the respective creditors ; and an order to this purpose may,
Lasabloniere wz% consent, be obtained upon petition ; but as the solvent debtor
V. Swinton, hath an interest in the distribution of the joint property, and the
18th J«n^ demands which may be made upon it, if he do not consent, re-

Bankrupt ^^^^ cannot be had without a bill.

Laws, 311, 312.

Exparte Mar- Where persons in trade have been connected in various pail-
Hn, 2 Bro. Ch. nerships, and a joint commission is taken out against them all, an
order hath been made for keeping distinct accounts of the dif-
ferent partnerships, as well as the separate estates of each part-
ExpartePar- ner. But where there have been various partnerships, and a
ker, 22(1 Dec. joint commission is taken out against one firm, in which some
Bankrunt ' ^^ ^^^^ parties were not engaged, there can be only the common
Laws, 314. order for keeping the distinct accounts of the joint and separate

estate.
Exparte Where there is a joint and several creditor, he must, accord-

Blankenhagen, ing to the rule of the court now firmly established, make his
June 23. L785. election whether he will come in upon the joint or the separate
Banks 1 Atk. estate, that is, which he will come in upon in preference-, for

106. Ex parte whichever he may elect, he will be entitled to come in upon
BondandHill, the surplus of the Other, if there should be any. And in or-
1 Atk. 98. Ex ^gj, ^.Q make his election {a\ he must have a reasonable time to

'DftVlG JtvOW"

Jandson 3 P. enquire into the state of the different funds; and it hath been

Wms. 405. determined, that he is entitled to defer his election until i\i^^\-

\Ex parte vidend.]

Turner,

1 Mont. & Mac. 255.1| {cCs Ex parte Clowes, 2 Bro. Ch. R. 595. \Ex parte Bavan, 10 Ves.

107. Ex parte Hay, 15 Ves. 4. Ex parte Mason, 1 Rose, 159.1|

Ex parte L»- 111" Certain cases, however, the creditor is not driven to lus
forest, Cook B. election, but may make his proof on the joint and separate estate.
L. 276. Ex Thus where the parties drawing and accepting or otherwise liaMe

/rf'?6"^"y"' ^" ^^^^^ ^^ notes, appear on the bill and are in fact trading under
' "^ distinct

(O) Of Partners.

^77

distinct firms or establishments, although they may be all jointly parte Adam
interested and in partnership, still the creditor is at liberty to sRose, 36. '
prove against the estate of each firm, and this as it seems whether ^ ^^*- * B.

he has or has not notice of the joint connection at the time of ^^\ -^'-^ /"*'"'*
, 1 • ., , .,, *' Bonbonus,

takmg the bill. 8 Ves. 545!

Ex parte Walker, 1 Rose, 441.; and see 2 Christ. 308. 2 Glyn & Ja. 27. 246. 250.
But where the parties to the bill or note are not in fact dis- Exparte Bigg
tinct firms, but only parts of the same firm, (as one partner 2 Rose, 37.
drawing a bill which is accepted by the firm,) in such case if the ^xparteUA-

holder takes the bill with notice of the partnership he must make ir.' '/^n' „i,
I'l- I T-i 1--I 1 -n JiiX parte aaxiK

lus election ; but quaere^ it he takes it without such notice r of England,

2 Rose, 82.

A creditor must in general make his election before a dividend Ex parte ^\^-

is declared of the estate against which he proves.

by, 13 Ves. 70.

Where a creditor has done any act in the character in which Exparte
he has proved, as signing a certificate or being a party to a Knott, 1 Mott.
petition, he will in general be considered to have made a con- l^'g-244. Ex
elusive election, so that his proof cannot be transferred. || hzxidi 5Madd.

418.; and see Ex parte Bolton, 2 Rose, 389.

\_A. lent money upon bond to B. and C. ; B. became bankrupt, Exparte
and afterwards A. sued C. upon the bond, and took him in exe-
cution, but consented to his discharge. Upon application by
A. to Lord Harcourt, to prove under ^.'s commission, his lord-
ship permitted him to come in as a creditor for a moiety ; and said
he would have admitted him for the whole, if, in fact, the whole
had been lent to B.

If one trustee suffer a co-trustee to detain a sum of money be- Keble v.
longing to the trust estate, they are both liable, and if th^y after- Thompson,
wards become bankrupt, the debt maybe proved under both ^^^ro. Ch.R.

Smith, 1 P.
Wms. 237.

112.

their commissions.

Partners being joint-tenants in their stock and effects, both West v.

original and accruing, and therefore seised per my et per tout,
upon an account being taken each is entitled to be allowed
against the other any thing he has brought in as a partnership
transaction, and to charge the other in account with what that

Skipp,

1 Ves. 242.
Cowp. 471.

2 Ld. Raym.
871.lSalk.392.
1 Show. 173.

139.

446.

• I 1 - - 1 111111 1 K-ichardson v.

ciple, where one erf three partners had embezzled and wasted Goodwin,

the joint stock, and contracting private debts became a bank- 2 Vern. 293.

rupt; the court seemed to think, that out of the produce of the See too, Goss

goods, the debts owing by the joint trade ought to be paid in £)avies'^^37i*^*

the first place, and that out of the bankrupt's share, satisfaction Hankey v.

must be made for what he had wasted or embezzled; and that Garrat, 3Bro.

the assignees could be in no better case than the bankrupt Ch.R. 457.

himself, and were entitled only to what his third part would

amount unto, clear after debts paid, and deductions for his

embezzlement.

An act of bankruptcy, if followed by a commission, is a disso- Hague v.Rol-

lution of the partnership, by virtue of the relation in the statutes leston, 4 Burr.

X X 3 which

6/8

2176.
471.

Cowp.

Fox V. Han-
bury, Cowp.
448. llSmith V.
Stokes, 1 East,
363. Smith v.
Oriel, Id. 369.
Ramsbotham
V. Cator,
1 Stark. Ca.
22S.||

Harvey v.
Crickett,
5 Maule & S.
336.

Mever v.
Tharpe,
5 Taunt. 74 ;
and see Rams-
bottom V.
Lewis, 1 Camp
Smith V. De
Silva, Cowp.
469.

J^.r parte
Hunter, 1 Atk.
227. Co. Bank-
rupt Laws,602.
Ex parte Bat-
son, 1 Ves.jun.
367.

Ex parte Bur-
rell, 22(1 Julj/
ll&o. Ex parte
Pine, 2d
Aug.\1^5.
Co. Bankrupt
Laws, 605.
^Ex parte
Reeve, 9 Ves.
588.11

Ex parte Bat-
son, 20th Jion.
1791. Co.
Bankrupt
Laws, 608. In
the case of

BANKRUPT. '

which avoids all the acts of the bankrupt from the day of tli« <
bankruptcy, and from the necessity of the thing; all his property ;
being vested in the assignees, who cannot carry on a trade.

Upon a question, Whether assignees under a joint commis-
sion against two partners, taken out after the bankruptcy of both,
could maintain an action of trover against a person in possessior
of goods under a sale, or consignment, bo7ia fide^ for a valuabU
consideration, and without any mixture of fraud, from one of
the partners, who had not then committed any act of bankruptcy
himself, but after an act of bankruptcy committed by the other
partner ; the court held, the action could not be maintained,
because the act of the partner, who, at the time of the consign-
ment, had not committed any act of bankruptcy, bound both,
and also because, supposing the consignment avoided by the act
of bankruptcy of the other party, then it is an action of trover
by one tenant in common against another, which cannot be.]

II And the solvent partners having notice of the act of bank-
ruptcy of the other partner at the time of the assignment of the
property, makes no difference as to the validity of the assignment.

But a partner having a mere interest in profits, without any
interest in the jprojperty^ cannot, after an act of bankruptcy of
the owner, transfer the property as against the assignees of the
owner. |l

. 278.

[One of three partners in a sliip and cargo, the cost and outfit
of which was 4,568/., pays only 410/. in part of his third shar^
and gives his notes for the remainder ; but, before they become
due, is declared a bankrupt. The other partners cannot, by
voluntarily discharging the notes, stand in his place for any share
of the profits; but the assignees are entitled to a full third,
both of the profits of the adventure, and the value of the ship.

If a partner is a creditor upon the partnership-fund, he can
have no satisfaction but out of the surplus which shall remain
after the joint creditors are paid. Aud Lord Hardwicke said,
that where there are joint and separate creditors, if one partner
lends a sum of money to the partnership, the creditors of his
separate estate have a right to this in the first place. j

But the contrary has been determined in a case where the
was a joint commission against two partners, and a separate oni
against one of them. The petitioners, assignees under the sep
rate commission, petition to be admitted creditors under the join|;'
commission, for a sum of money brought by their bankrupt intp
the partnership beyond his share, and as being therefore a
creditor on the partnership for that sum ; but were refused oD
the principle, that he cannot be a creditor on the partnership it
competition with the joint creditors.

So where one partner hath taken more than his share out ot
the partnership-fund, the joint creditors, as the rule seems to bt
now settled, cannot be admitted to prove against the separati
estate of the partner who drew out the money, until his separat
creditors are satisfied, unless it can be shewn that the partner^

actel

(O) Of Partners. 679

acted fraudulently, with a view to benefit his separate creditors Fordyce, who
at the expense of the joint creditors. had taken pro-

, . . , ,. perty from the

partnership fund, and apphed the same to his own use, without the knowledge of his partners,
the assignees, on the behalf of the joint creditors, were allowed to prove against the separate
estate. Ex parte Ciist, 29th March 1 774. Co. Bankrupt Laws, 609. ; ||and see 2 Ves. & B.
210. In order to admit the proof on the separate estate the property must be clearly taken
without any authority, express or implied, from the other partner. Ex parte Yonge, 3 Ves.
& B. 35. Ex parte Harris, 1 Rose, 437. Ex parte Smith, 6 Madd. 2. Ex parte Watkins
1 Mont, & Mac. 57. In such case there is the same right of proof by solvent partners as
by their assignees, in case all the partners are bankrupt. 3 Ves. & B. 35. Solvent partners
[)aying the debts of the partnership may prove against a bankrupt co-partner as " sureties or
persons liable" within 49 G. 3 c. 121. (now re-enacted by § 52. of G G. 4. c. 16.) 3 Ves. &
B. 133. 2 Maule & S. 195. 2 Rose, 175. 17 Ves. 115.; and see 1 East, 20.||

Where there were two partners, and one had taken out more Ex parte
money from the partnership-stock than his share amounted to, i^rake, cited ui
and therefore became a debtor for so much ; Lord Talbot was of Q.aven%
opinion, that the partnership creditor had a right to come upon Knight, 2Ch.
the separate estate of the partner who was so indebted.] R- 226.

(I And so also in cases where there are distinct firms composed In re Shake-
partly of the same members, and the business is distinct, and ^^aft, &c.
both become bankrupt, here the one firm may prove against the ^a^^' ^\'
estate of the other, although some of the members of each firm 4 Ves.'4i4.
are the same ; provided, however, that the estate seeking to prove Exj^arteKwg,
is not liable for the joint debts of the estate against which the Co. B. L. 558.
proof is to be made.

Thus where A. and B. were in partnership, and A. carrying Ex parte He-
on a separate trade, furnished the partnership with goods, for '*'^a™> ^ Rose,
which they incurred a debt to him, and B, became bankrupt ;
Lord Eldon held, that A. could not prove against the estate of B,y
since he was himself liable jointly for the same debts.

But in the case of a firm of .^. B. C. and D., proving against Ex parie
a firm of A. B. C. and E., the former firm are not liable for any 506™\I,"s'^'
joint debts with the latter. Ex parte

Castell, 2 Glyu & Ja. 1 24.

In a late case it was decided by Lord Eldoti, after an examin- Ex parte Silli-
ation of the original records of all the decisions on this subject, toe, 1 Glyn &
that in order to entitle a minor firm consisting of members of a •'• ^'^'*' , . ^^
larger aggregate firm, carrying on a different business, to prove [^ prove* wi'fh-
against such aggregate firm the debt must have arisen on articles out receiving
of the trade furnished by the one firm to the other; and the debt dividends, see
here having merely arisen from advances of money procured by iiv^"'* ^^'
the one firm for the other, his Lordship considered it as a case
of partners claiming to prove on the partnership estate, and
disallowed the proof. H

[If one partner is an executor or trustee, and, with the knoiso- Ex parte Ap-
ledge of his copartner^ lends the trust-fund to the estate, it be- ^^y-> ^ ^""o. Ch.
comes a debt which may be proved against the joint estate : Secus^ **'^'
if without the knowledge of the copartner.]

II And where one of three trustees and a partner in a banking ExparteBoU
house forged the names of his co-trustees to a power of attorney, '?"5^' ^ ^*ont.
whereby his co-partners were enabled to sell out the trust stock, ^^^^j ^^^ j^ ' '
and the proceeds of the sale were paid into another banker's, 355. 2 Glyn &

X X 4 to

GSO

BARGAIN ANU SALE.

J. 118.; and
see Stone v.
Marsh, 1 Ry.
& Moo. 364.,
and Hume v.
I3olland,
/rf. 371.

to the account of the banking house, and the trustee who had
forged the power afterwards drew out the fund, and he and hh
partners became bankrupt ; it was held, that as the partner who
drew out the money had no authority from his co-trustees to do
so, he must be taken to have drawn out the money as partner in
the banking house, and therefore it was a debt provable against
the joint estate. H

BARGAIN AND SALE.

ilJ AllGAIN and sale is a contract in consideration of money
or money's worth, passing an estate in lands, if of inherit-
ance or freehold, by deed indented and enrolled. This manner

3 Inst. 672.
[See further.
West S\ mb.

§ 593. Termes ^^ conveying lands is created and established by the 27 H. 8,
de la Ley, tit. c. 10., which executes all uses raised; and, as this hath intro-
duced a more secret way of conveyancing than was known to the

Bargain and

th B r i^^^ d P°^'^y °^ ^^^ common law, therefore the enrolment of the deed

of bargain and sale was made necessary by the 16th chapter of
the statute; but the learning on this head depending on statutes,
it is first proper to recite that.

By the 27 H. 8. c. 10., " Where any person or persons stands
" or is, or stand or are seised of or in any honours, <§-c., land%
" tenements, rents, services, ^c, to the use, confidence, or trust
" of any other person or persons, or body politic, by reason or
" any bargain, sale, feoffment, 4~c. ; such person or persons, Si'(^^
" that have any such use, shall be deemed and adjudged in
" lawful seisin, estate, and possession thereof, to all intents and
" purposes, of or in such like estates as they have in the use,
" Sfc. ; and the estate, right, and possession of him and them so
" seised to any use, ^r., shall be deemed and adjudged in him
" or them which have the use, Sfc, after such quality, manner, ^r.
" as they had before in or to the use," Sj-c,
time makes the sale of them. Com. Dig. tit. Bargain and Sale (A). Touchst. 221. It is said
that a bargain and sale is not so strong a conveyance as a livery ; for, if I have a rent-charge
out of the manor of D., and afterwards purchase the manor; and afterwards, by deed indented
and enrolled, I bargain and sell the manor, the rent-charge shall not pass. 1 Leon. 6. By
feoffment or jflne, all uses and possibilities are conveyed by reason of the forcible operation ; but
it is otherwise by bargain and sale. 1 Leon. 33. A bargain and sale doth not pass away or
affect a contingent use in the bargainor ; but a feoffment or fine would transfer it. Hardr. 416.^

Sale.

27 H. 8. c.IO.
Ld. Bacon's
Use of the
Law, Mo. 41.
Touchst. 221.
2 Black. C.
338. So there
is a bargain
and sale, where
a man makes a
contract with
another for the
sale of goods
or chattels, and
at the same

27 H. 8. c. 16.
[Deeds were
enrolled at
common law
for their pre-
servation,
though not to
pass any estate.
Sty. 370- The

By the 27 H. 8. c. 16., " No manors, lands, tenements, or
" other hereditaments shall pass from one to another, whereby
" any estate of inheritance of freehold shall be made or take
" effect, or any use thereof to be made, by reason only of any
*' bargain and sale, except by writing indented, sealed, an<J
" enrolled in one of the courts at Westminster, or else withifi
" the county or counties where the lands, ^c. so bargaine<l

« and

Jtt

BARGAIN AND SALE. 681

" and sold lie, before the custos roiulm-wn, and two justices fn* l

" of peace, and the clerk of the peace of, Sfc, or two of them, not by thT
" whereof the clerk of the peace to be one ; the same enrol- statute of en-
" ment to be made within six months after the date of the f°l"j^"^ I'"'
<' same writing indented. Provided this act extends not to ofuseV^^Dim-
" any lands, Sfc. lying within any city, borough, ^r., wherein mock's case,
" the mayors, Sfc. or other officers have used to enrol any H°^- ^^6. The

" evidences, deeds, or other writings within their precinct or o^y^ctsofthe
j( 1. . „ ° ^ statute of en-

nmits. rolment evi-

dently were, first, to force the contracting parties to ascertain the terms of the conveyance by
reducing it into writing ; secondly, to make the proof of it easy, by requiring their seals to it,
and consequently, the presence of a witness; and, lastly, to prevent the frauds of secret conve)--
ances, by substituting the more effectual notoriety of enrolment for the more ancient one of
livery. But the latter part of this provision, which, if it had not been evaded, would have
introduced an almost universal register of conveyances of the freehold in the case of corporeal
hereditaments, was soon defeated by the invention of the conveyance by lease and release,
which sprung from the omission to extend the statute to bargains and sales for terms of years;
and the other parts of the statute were necessarily ineffectual in our courts of equity, because
these were still left at liberty to compel the execution of trusts of the freehold, though created
without deed or writing. The inconveniences, however, from this insufficiency of the statute
are now, in some measure, prevented by the 29 Car. 2. c. 3. which provides against conveying
any lands or hereditaments for more than three years, or declaring trusts of them, otherwise
than by writing. Hargr. Co. Lit. 48. a. n. 3.]

By the 5 Eliz. c. 26., " Bargains and sales of lands, S,x. in sEIiz. c. 26.
" the county of Lancaster^ being within six months enrolled in
*' the Chancery 2X Lancaster^ or before the judges of assize there,
*' of lands, 8;c. in Cheshire^ in the Exchequer at Chester^ or be-
" fore the judges of assize there, of lands, 8^c. in the bishoprick
*' of Durham^ in the Chancery at Thirham^ or before the justices
** of assize there, shall be as effectual as if enrolled in any courts
" at We&tminster. Provided this act extends not to any lands
" lying within any city, 8^c. wherein the mayors, Sj-cP

[By 5 Ann. c. 18., Bargains and sales of any manors, lands, 5 Ann. c. I8.
8^c. within the West Riding of the county of York, which shall be
enrolled before the registrar for the said West Biding, or his
deputy for the time being, in the public office at Wakefield, shall
be as good and available as if the same had been enrolled in one
of the king's courts of record at Westminster, or before the custos
rotulorum, and two justices of the peace, and the clerk of the
peace of the said West Riding, or two of them, according to the
statute of the 27th H. 8. — By 6 Ann. c. 35. § 16., the like pro-
vision is made for enrolling bargains and sales in Beverley of lands
within the East Biding of the county of York, or the town and
county of the town of Kingslon-upon-Hull ; and by § 30. of that
statute it is enacted, " that in all deeds of bargains and sales
'* enrolled in pursuance of that act, whereby anj/ estate qfinherit-
" ance in fee-simple is limited to the bargainee and his heirs, the
" words grant, bargain, and sell, shall amount to and be construed
" and adjudged, in all courts of judicature, to be express cove-
" nants to the bargainee, his heirs and assigns, from the bar-
" gainor, for himself, his heirs, executors, and administrators,
" that the bargainor, notwithstanding any act done by him, was
*' at the time of the execution of such deed seised of the heredi-

tamcnty

G82

BARGAIN AND SALE.

' laments and premises thereby granted, bargained, and sold, of
' an indefeasible estate in fee-simple, free from all incumbrances

* (rents and services due to the lord of the fee only excepted), i
' and for quiet enjoyment thereof against the bargainor, his |
' heirs and assigns, and all claiming under him, arid also for |

* further assurance thereof to be made by the bargainor, his j
' heirs and assigns, and all claiming under him ; unless the
' same shall be restrained and limited by express particular j
' words contained in such deed ; and that the bargainee, his '

* heirs, executors, administrators, and assigns respectively, shall ,
' and may, in any action to be brought, assign a breach or j

* breaches thereupon, as they might do in case such covenants

* were expressly inserted in such bargain and sale." — By 8 G. 2. .
c. 6. §21., the enrolment of bargains and sales of lands in the
North Hiding of the county of York is authorized in the register-
oflBce for that Riding.

53 G. 2. c 30. By the 33 G. 2. c. 30. § 10., being an act for widening certain
$ 10. streets, Sfc. in London, it is enacted, that all bargains and sales

made and acknowledged by any person or persons whomsoever,
•which shall be enrolled in the hustings of the said city, of any lands,
tenements, and hereditaments, purchased by virtue of and for the
purposes of that act, shall have the force, effect, and operation in
law, to all intents and purposes, which any fine or fines, recoyery
or recoveries whatsoever, would have if levied or suffered by the
bargainor or bargainors, or any person or persons seised of any
estate in the premises, in trust for, or to the use of, such bar-
gainor or bargainors, in any legal manner or form whatsoever.]

We shall now consider,

(A) Who may bargain and sell, and to whom.

(B) What may be bargained and sold [and how a Bar- j

gain and Sale shall be taken].

and herein of the Words to be made use of.

(D) Of the Consideration.

(E) Of the Enrolment : And herein,

1. The Relation between the Enrolment and the Deed.

2. What Estates are to be enrolled; and herein of the

Exception as to Lands in Cities^ Boroughs, &c.

3. The Time -of Enrolment,

(F) The Manner of pleading Bargains and Sales.

(A) Who

(A) Who may bargain and sell, and to whom. 683

(A) Who may bargain and sell, and to whom.

'T^HE king, and all other persons that cannot be seised to a use, Bro. FeofT-

cannot bargain and sell (a) ; for at common law, when a mari ""ent to Uses,

had sold his land for money without giving livery, the use only ^- Hard. 468.

passed in equity, and this is now executed and becomes a bargain \\{^Cont\\ !-

and sale by the statute ; but antecedent to any such execution land v. Boins,

there must be a use well raised, which cannot be without a per- 2 Leo. 121.

son capable of beinsr seised to a use, which the king is not, there "'l-^?- ^'^j '"
1 • , 4. ^ u- .. c 4.1 4. \ c whicli case the

beuig no means to compel him to perform the use or trust ; tor ^q^^^ rejected

the Chancery has only a delegated power from the king over the an exception
consciences of his subjects ; and the king, who is the universal made against
judge of property, ought to be perfectly indifferent, and not to » p'P"" and
take upon him the particular defence of any man's estate as a ground that a
trustee. bargain and

sale by a corporation is not good. Vide Com. Dig. tit. Bargain and Sale (B), o. The distinction
was taken, that though a corporation could not take an estate to another's use, yet they might
ch;irge their possessions with a use to another; but this is very questionable. 1 Rep. 127. a.
and Cru. Dig. vol. iv. 109. Preston on Conv. vol.ii. 255. A bargain and sale by a sole corpo-
ration will be good during the office of the person by whom the bargain and sale is made.
Bac. on Uses, 57. ||

If tenant in tail bargains and sells his land in fee, this passeth loCo. 96. 93.
an estate determinable upon the life of tenant in tail (6); for, at Sand. 260,261.
common law, the use could not be granted of any greater estate Co. Lit. 359 b.

than the party had in him ; now tenant in tail had an inheritance !!^ ' ,

. , . 11 111- r- II' 1 • ^•c• 1 *ee passes, and

m him, but he could dispose of it only during his own life; and the estate con-
therefore when he sells the use in fee, cestui que 7ise hath a kind of tinues till
inheritance yet determining within the compass of a life; and the avoided by the
statute executes it in the same manner as he hath the use, and ^^"^ *" H ^y
consequently he will have some properties of a tenant in fee, and chelf v.Clar'ke
some of a tenant for life only : but if tenant for life bargains and 2 Ld. Raym.
sells in fee, this passeth only an estate for life (c), for he could ''^s* The bar-
not pass the use of an estate for life to the bargainee, and the f ntj't^eJ ^^^^ "
statute executes the possession as the party hath the use. dower, deter-

minable in like manner by issue in tail by entry. He is dispunishable for waste. The estate
is not devisable according to the stat. 32 H. 8. c. 1. and 34 & 35 H. 8. c. 5. Carter, 208. ||
(c) And creates no forfeiture, 4 Leon. 124.

If a husband, seised of lands in right of his wife, or tenant in IjBulstr. 5. in
tail, bargains and sells the trees growing on the lands, and dies ij''*"^*. . "" ||
before severance, the bargainee cannot afterwards cut them down
and take them away.

If a son and heir bargains and sells the inheritance of his Kelw. 84. Co.
father, this is void, because he hath no right to transfer ; the n"^* ^*'^- '^"* '^
same law of a release, (d) a feoffmen^t of

the inhentance of his father, this passeth an estate during the son's life ; for it is a disseisin to
the father; and the son, after the father's death, cannot avoid it; for no man can allege an
injury in any voluntary act of his own. Co. Lit. 265 a. (rf) But if the son relcaseth with
warranty, he and heirs are for ever hereafter barred by the rebutter. Co. Lit. 265 a.

If there be two joint-tenants, and one of them make a bargain Cro. Jac. 53.
and sale of his own estate in fee, and the other die before enrol- Co. Lit. ise.

ment, the other moiety shall survive to the bargainor; for since r/ ^m,;^*,.
. 1 ,.,,,.., r . .... " . , . [\a) 1 Ills uis-

the freehold is in the bargainor, the inheritance continues ; but tinction is. not

684.

BARGAIN AND SALE.

warranted by if sucli joint-tenant had bargained and sold totum statum siium in
the authorities fee (a), though he died before enrohnent, yet if the deed were after-
referred to, wards enrolled, the moiety would not survive, but would pass to

the barffainee.

nor is it to be
found in any

case-book wherein this case is reported. Bro. tit. Faits enroll, p. 1 1. Cro. Car. 217. 569. Bac.
Max. Reg. 14. Brook, in his Abridgment, useth the general words, " all his lands and tene«
" ments in 1). ; " and saith, that they will not pass the entirety, because the enrolment hath
relation to the delivery of the deed ; and, of course, can pass no more than the bargainor had
at the time of the delivery. The bargain and sale, it hath been said, occasions, of itself, be/on
enrolment, a severance of the joint-tenancy. Owen, 70. arguendo.]

Cro. Eliz. 402.
cited as ad-
judged in
10 Eliz. Bac.
Max. Reg. 14.

2 Inst. 673.

2 Inst. 673.
10 Co. 43.
[But a fine,
and recovery
upon it will
bind the wife.
Mo. 22. By
custom, the
deed itself will

10 Co. 24. 34.
2 Roll. Abr.

788.

7 Co. 40. 2 Co.
24. Cro. Eliz,
394. Vent.
137. Lev. 56.

[If a mortgagor entreats a stranger to redeem the land at the
day, and covenants by indenture, that after such redemption the
stranger shall have the land to him and his heirs; and that he, in
consideration of such a sum, will stand seised to the use of him
and his heirs ; the stranger redeems the land at the day the
mortgagor enters, and the deed is enrolled within six months ;
yet nothing passeth, because he had not any estate or interest
therein at the time to contract for it.]

If an infant bargains and sells his land by deed indented and
enrolled, he may plead nonage at any time ; for, notwithstanding
the statute, the bargainee claims by the deed as at common law,
which was, and therefore is still, defeasible by nonage.

If a wife joins with her husband in a bargain and sale by deed
indented and enrolled of her lands, yet it shall not bind her ; for
the wife cannot be examined by any court without writ, and
there is no writ allowed in this case, which is for the better secu-
rity of wives, who are by our law entirely subjected to the will o
the husband.

bind her. Bro. Abr. tit. Faitsenroll. pi. 10.]

A man may bargain and sell to a corporation, for they ma
take a use, though the money be given by the governors in their
natural capacity.

A man may bargain and sell to his son, but then the con-
sideration of money ought to be expressed, and it ought to have
all the other circumstances of a bargain and sale: but this shall
operate as a covenant to stand seised, if there be none but the
consideration of natural love and aflPection expressed.

(B) What may be bargained and sold [and how a
Bargain and Sale shall be taken].

2 Co. 54. Dyer,
309. 2 Inst.

A NY freehold or inheritance in possession, reversion, or re
... y , niainder (6), upon an estate for years, for life, or in tail]

remainder^ ^ ™^y be bargained and sold, but the deed shall be enrolled,
and reversions in fee may be transferred by bargain and sale. Vaughan, 51. Remainders in tai
can only be conveyed by fine. 3 Co. 84. a. Contingent remainders can only be conve\ed by
fine by way of estoppel, and perhaps by a common recovery. Weale v. Lower, Pollex. 54. ||

2 Inst. 671. But a man seised of a freehold may bargain and sell it for

2 Roll. R. 204. years, and this shall be executed by the statute of uses; but it
cont. 2 Inst. jjgg^j jjQj_ Y>Q enrolled by the statute of enrolments.
^"ii- * A man

( B) What may he bargained and sold, S;c. 685

A man possessed of a term cannot bargain and sell it so as 2 Co. 35, 36.
to be executed by the statute. Poph. 76. Sir

T.Jones, 2 17.

A rent in esse may be bargained and sold, because this is a 1 Co. 126.

freehold within the statute ; and before the statute a rent newly Andr. 327.

created might have been bargained and sold, because when Jones, 179.

money, as an equivalent, was given, and ceremonies or words of t^pon a bar-

." .1 1^1 I'll I • S^*" 3"^ sale

law were wantmg, the Chancery supplied them : but it seems, according to

that since the statute, a rent newly created cannot be bargained the statute, a
and sold (a), because there ought to be a freehold in some other rent may be
person, to be executed in cestui que use ; but here can be no seisin g q^ g^",
of this rent in the bargainor, because no man can be seised of \\(a) But
a rent in his own land, and consequently there can be no estate though a bar-
to be executed in the bargainee. 8^'" ^"^ ^*'^
" cannot be

made to one person, to the use of another, a bargain and sale may be made to one person, to
the intent that a recovery shall be suffered to the use of another ; for, in that case, the uses
do not arise from the seisin of the bargainee, but from the seisin of the demandant in the
recovery. And in bargains and sales from commissioners of bankrupt, and under similar com-
mon law authorities, uses may be declared upon the seisin of the bargainee, for they pass a
seisin at common law, and enrolment and other formalities are only necessary when prescribed
by the authority. ||

If A., by indenture enrolled, bargains and sells lands to B. Cro. Jac. 189.
and his heirs, with a way over other of the lands of ^., this is Beaudly v.
void as to the way ; for nothing but an use passes by the deed, ^°° '
and there can be no use of a thing not in esse, as a way, com-
mon, 4C'> before they are created.

[Before the statute of H. 8., if a man had bargained his land 1 Co. 87 b.
for money generally, without the words " his heirs," the Chan- J?f^ jq d_-
cellor would oblige him, according to conscience and the intent tit. Contract '
of the parties according to the value, to execute an estate in fee, Bargaine, et
for uses were then things merely in trust and confidence; but Achate, pi. 1.
since the statute they are transferred and made into an estate in
the land ; and therefore without the word " heirs " the bargainee
hath only an estate for life.

If one, in consideration of 10/., bargain and sell his land Tyrrel's case
to A. and his heirs, to have and to hold to A. to the use of the Dy. 155.
bargainor for life, the remainder in tail to A.^ the remainder to 1 Andr. 57.
the right heirs of the bargainor; the habendum in this case is ^IgL c°L"t
void, and A, and his heirs shall have the land for ever.] 271 b.

Though a use could not rise as a use upon a use, whether equity would not support it as a
trust? Ash V. Gallen, 1 Ch. Ca. 114.

II But where Sir C. H., tenant in tail in possession of certain Haggerston v.

hereditaments subject to an outstanding term, by indenture, in t'D"'""^^'2 n
. , , <> ., , ,, • 1 . . ^1 5 Barn. & C.

order to bar the estate tail and all remainders expectant there- j^i.; and see

upon, and to limit the same to himself in fee, and in consider- Shep. Touch,
ation of 105., granted, bargained, and sold the said hereditaments 83. (Preston's
and the reversion thereof to A. and B.j their heirs and assigns, ^"'*0
to hold to them A. and B. to the use of A.^ that he might be-
come tenant of the freehold of the said premises, in order to
suffer a recovery ; and the deed was afterwards duly enrolled as a
bargain and sale : it was held, that it operated as a grant of
the reversion to A. and B., and that A. became solely seised of

the

085 BARGAIN AND SALE.

the premises so as to be a good tenant of the freehold of th«
entirety. ||

2 Inst. 675. AT ccmmon law lands might be bargained and sold by words
Dyer, 229. only, for it was the consideration that in equity raised tlw

P°P'j-'*fP^'*- use, but, since the statute of 27 H. 3. c. 16. lands cannot pass
6.3. And there- .? ^ • j . '

fore lands in without mdenture.

cities, boroughs, jjor towns corporate, not being within the act, might, since the passing of it,||
till the 29 Car. 2. c. 3. have been bargained and sold by word only, 2 Inst. 676. Yelv. 124.
See post.

2 Inst. 672. It is not necessary to use the words bargain and sale, but any

Cro. Jac. 210. words equivalent are sufficient, and whatever words upon valuable

fM^' ''A* consideration would have rai.sed an use of any lands, dx. at com-

tliz. 166. , , , . , ' 1 . 1 . 1 .

mon law, the same amount to a bargain and sale withm this act ;

as if a man by deed, ^c. for a valuable consideration covenants

to stand seised to the use of another, Sfc.

2 Inst. 573. Though the deed may be either in parchment or paper, yet

the enrolment must be in parchment only, for that is implied

when an enrolment is to be in any of the courts of record at

Westminster; and in the clause of enrolment by the clerk of the

peace, it is particularly provided, that he shall sufficiently enrol

and engross it in parchment.

2 Co. 35. Hay- A man demises, bargains, and sells a manor, part in demesne,

ward's case. and part in tenants' hands, for seventeen years, the party may

choose either to take it by way of lease at common law, and

then the tenants must attorn ; or by way of bargain and sale

without attornment ; and this agrees with the policy of the

common law, to take every man's grant, so as to pass such an

interest as shall be most advantageous for the grantee ; and since,

in this case, the words allow a double way of taking it, the

grantee shall be judge which is most beneficial.

2 Roll. Abr. II Also if a man grants, bargains, sells, enfeoffs and confirms,
787. pi. 5. ^jj^j-, jgftgr of attorney in the same deed to make livery, the

3 Lev. 16. 111.1" I'l 1 1

party hath his election to take either at common law, or by way

of use, and that way which first executes the estate shall stand. ||
Lord Ewre ?. [A bargain and sale made to one with the addition of knight,
Strickland, ^J^q is not SO, is good.l

Cro. J. 240. ' ^ -"

(D) Of the Consideration.

1 Co 176 Mo JF a man bargains and sells lands for divers good causes and
569. 1 Leon. considerations, it is void, unless money be averred ; for selling

170. Videinfra, ex vi teimini supposes a transferring a right of something for
and Plowd. money, the common medium of commerce; but if there be no
such consideration it may be an exchange, a covenant to stand
seised, grant, Sfc, but it can be no sale within the statute.
Mo. 570. Dy. If there be a consideration of money expressed in the deed,
90a. Touchst. i^Q averment nor evidence can be admitted against it, for the
222. [(«)But *= affirmative

(E) Of the Enrolment, 6S7

affirmative is proved by the deed (a), and it is impossible to see Timrle v.
prove the negative. Madison, Sty.

462.]

II A reservation of a peppercorn rent is a sufficient consider- Barker v.
ation to raise a use for a term of years, but not for a freehold Keate, 1 Mod.
estate. II 26.3. 2 Mod.

249. Anon.
1 Freem. 249, 2 Vent. 55.

If the deed says for a competent sum of money, it is suffi- Moor, 570.
cient, without averring the sum, for it is a sale if there be
any money.

A man in consideration of 70/. bargains and sells to his 1 I^eon. 170.
daughter and J. S. in tail, who intermarry ; it may be averred ^ ^ ' Yl^'
tarn in cojisideratione maritagii, quam in consid. de 70/. for a man
may aver any consideration consistent with that in the deed.

If a man in consideration that t/. S. was bound in a recogni- Cro. Eliz.394.
zance, and other bonds for him, and for divers other good causes
and considerations, bargains and sells his land to him and his
heirs, it is not good.

If a man in consideration of so much money to be paid at a Dyer, 337 a.
day to come, bargains and sells, the use passes presently, and
after the day the party hath an action for the money, for it is a
sale by the money paid presently or hereafter.

[^A. by deed indented and enrolled, in consideration of 100/. 2 Inst. 672.
paid by B., bargains and sells land to B., C. and Z)., parties to
the indenture; in this case the land passeth to all; for although
the valuable consideration be expressed to be paid only by
one, yet it must be intended that it was paid by all, that the
land may pass to all according to the meaning of the parties ;
and consideration given by one, is sufficient to convey the
land to all.]

II If a man bargain and sell his land in consideration of 100/. Biickley v.
paid by J. ^9., though in this case the consideration ariseth from Simon, Wincb^
a stranger, yet that will pass the use to the bargainee. ||

(E) Of the Enrolment : And herein,
1 . The Relation between the Enrolment and the Deed.

AT common law the use passed from the delivery or date of Dyer, 218.

the deed, and by the statute 27 H. 8. c. 10. the possession Hob. iss.

passed as the party had the use at the time of the delivery of the H, y" ^''**

deed; but it was thought proper to add some further circum- Roll. Abr. 627.

stances, which is done by cap. 16. and therefore, if these circum- Owen, 149,

stances are observed, it hath the same effect it had before at 150.
common law, to wit, to raise the uses from the'delivery ; for the
words of the statute are only to add some things, and not to
abolish or set aside the force it had formerly.

\^ A. bargains and sells lands to B. and his heirs, and before Cro. Jac. 52.

enrolment B., reciting this bargain and sale to be by indenture »ellingham v.

enrolled, bargains and sells to C. and his heirs all the estate 675. Vcnt.36a

which

688 BARGAIN AND SALE.

||(w) Cited as which he had by the said indenture enrolled, and after the first,
at'jiiiiged coH« and then the second deed is enrolled ; by Daniel and Ki/igsmill,
case Ow. 149. ^^^ lands are well conveyed to C, for when the first indenture
Cro.Jac. 409. was enrolled, the estate was in B. ah initio to bargain, sell, S^x.
Hob. 136. ; but and the words in the second deed are apt enough to pass the
H/X ' '^"^ " land, and the recital of the enrolment immaterial; but Anderson
of the same ^"^ Wafburton cont. ; for a man cannot pass what he hath not,
case, 2 Inst. and till the deed was enrolled i5. had nothing; and he passed
675. that the only what he had by indenture enrolled; but Walmsleij held, the
bargainee may j^j^j passed not by reason of the misrecital, but that otherwise it
enrolment.il would have passed; and it was adjudged for the defendant,

according to the opinion of the three last judges, {a )
Wood's Inst. [If two bargains and sales are made of the same lands to two
259. Mo. 41. several persons, and the last deed is first enrolled, and after-
Lro.Jac.409. .^yg^-jg j-jjg fjpgj- Jeed is also enrolled within six months, the first
Enrol. 328 a. buyer shall have the land; for when the deed is enrolled, the
pi. 9. bargainee is seised of the land from the delivery of the deed, and

the enrolment shall relate to it.]
Thomas v. HAnd the same is the case, if after the first bargain and sale to

Popham,Dyer, the one, a bargain and sale be made and fine levied to another. ||

218.

Hob, 165. [But if the first deed is not enrolled, and the last is enrolled

Owen, 70. within the time, then the last is good.

1 Roll. R. If a disseisor bargain and sell land, and the disseisee release
eaid to be so to the bargainee before enrolment, it is void. But a release {b)
^n fP^ ^^ ^^^^ disseisor before enrolment had been good ; and then the
Mocket's case, enrolment should pass the estate to the bargainee, and he should
{b) 1 Ro.R. Id. take advantage of the release.]

Bulstr. 8, 9. If a man bargain and sell his manor, to which there is an ad-

vowson appendant, the bargainee can make no title to present
before enrolment.
Cro. Jac. 53. If there be two joint tenants, and one of them make a bargain

Lit. 186. and sale of his own estate in fee, and the other die before

I3ulstr..'5. Bro. enrolment, the other moiety shall survive to the bargainor,
roi. p 11 Cro 11 And though the words of the bargain and sale comprised the
Car. 21 7. 569. whole estate, only a moiety would pass ; || but if such joint tenant
Bac. Max. had bargained and sold totum statnm suitm in fee, though ha
Keg. 14. jjgj before enrolment, yet if the deed w^ere afterwards en-

rolled, the [his] moiety would not survive, but would pass to
the bargainee.
4 Co. Hind's If a man bargains and sells his land, and then suffers a re-

case. Mo. 681. covery, levies a fine, or makes a feoffment to the bargainee, and
S03"4 Leon^4 ^^®" ^'^® '^^^^ '^ enrolled, the land passeth by the recovery, fine,
Poph.49.Hob. or feoffment; for since the freehold and the use is in the bar-
2a2. gainor till enrolment, it must pass by the recovery, &,•€.: and

when it hath passed by the recovery, the use cannot rise, nor
possession be executed from the date of the deed.

2 Inst. 674. If the bargainor or bargainee die before enrolment, it may,
Hob. 136. notwithstanding, be enrolled, for here are parties to give and

take the interest when it begins to vest; for it vests from the
date of the deed ; otherwise, in the case of an attornment.

llAnd

337.

(E) Of the Enrolment. ()89

HAnd the heir will take and be in by descent, and shall be t>

in ward. II S^T fnf

" CroJac. 409.

Owen, 49. Hob. 156.

If a man bargains and sells his land, the bargainee may be Vent. 36i.

tenant to the pracipe before enrolment, and may receive a release ^ ^""* ^ ^''^•
before enrolment.

But where the commissioners of a bankrupt had assigned the i Vent. sec.

bankrupt's lands to the lessor of the plaintiff, and the indenture 2 Show. R.i 56.

was afterwards enrolled, but the declaration was upon a demise ^- C. 2 Jones,

made after the indenture, and before the enrolment; it was Q.,rth iVs

adjudged, that this declaration was not sufficient. S. P. adjudged
on the authority of this case. Show. 207. S. C. where it is said, that Holt C.J. held, that it
was not amendable.

If a man bargains and sells a reversion, and the rent is in- Owen, i50.
curred, and afterwards the deed is enrolled, the bargainee shall Godb.209.
have the rent unpaid; but if the rent be paid to the bargainor, ^ '^^^'
the tenant is not only excused, but the bargainor is not account-
able; because the contract had not any effect to pass the estate
from the bargainor before enrolment; and the relation of a law
cannot make void an act that was lawful; for it cannot be set
aside but by an express and positive law.

If a man makes a lease for life, reserving rent, with clause of Owen, 69. 1 50.
re-entry, and then bargains and sells the reversion, the bargainee Godb. 156.
demands the rent, and the lessee refuses, and then the deed is ]^\^^' ^^"l;
enrolled, the bargainee cannot enter for the forfeiture; for, till Car.^217.
enrolment, he is not grantee of the reversion within the statute
capable of the duty ; and consequently, at the day, could make
no legal demand, which was precedently necessary to this entry.

If a man, seised in fee, is bound in a recognizance, and then 2Andr. I60.
bargains and sells all his lands, and then the recognizance is Owen, 69, 70.

2 Inst. 674.

217.

forfeited, and then a scire facias is sued out against the land in q^q" q^j.
the hands of the bargainor, and then the deed is enrolled, this
scire facias is not maintainable.

II A bargainee may maintain an assise before enrolment. 2 Andr. I6I.

If tenant for life be impleaded after a bargain and sale of the Owen, 70.
reversion, and then the deed is enrolled, the bargainee shall be
received; though no man shall be received by the statute of
Westm. 2. that purchases the reversion pendente lite.

If, before enrolment, a bargainee grants rent out of the land, 2 Inst. 675.
and afterwards the bargain and sale is enrolled, the grant is Gawen v. Sta-
good.H cy._Cro.Car.

If, before enrolment, the bargainor and bargainee grant a Co. Lit. 147 b.
rent, S^c, after enrolment, by operation of the statute, it shall be
the grant of the bargainee, and confirmation of the bargainor.

II But if the deed be not enrolled, it shall be the grant of the
latter, and confirmation of the former. ||

If lands are bargained and sold, and the bargainee dies before Andr. I6I.
enrolment, his wife shall not be endowed ; so if a man bargains Cro. Car.569.
and sells lands by indenture, and then takes a wife and dies, and are\j!irgained
after, the deed is enrolled, the wife shall not be endowed. and sold, and

a stranger enters, and then the deed is enrolled, the bargainee dies, his wife shall be endowed;
but for this vide tit. Dotver.

Vol. I. Y y [A covenant

case.

690 BARGAIN AND SALE.

Northcott V. [A covenant in a bargain and sale not enrolled, is binding.]]

UnderhilJ,

1 Lcl. Raym. 388. 1 Salk. 199.

2. What Estates are to be enrolled; and herein of the Excepth
as to Lands in CifieSf Boroughs, &c.

2 Inst. 671. All estates of freehold and inheritance must be enrolled; bui

if a man bargains and sells his lands for any number of years,
the deed need not be enrolled.
7 Co. Bedel's If a man bargain and sell land to his son in consideration ol

money, the deed must be enrolled ; but if the father, in con4
sideration of natural love and affection, and also for moneyi
grant land to his son, this need not be enrolled ; for covenants to
stand seised are not within the words of the statute, and where
the consideration of blood is expressed, it may enure as a cove*,
nant to stand seised ; but it is only a sale when the consideration
of money is alone expressed, for that excludes all other tacit
considerations.
2 Inst. 676. Lands in cities, boroughs, Src. that have the privilege of en-

DalT'er^Y 1 rolments, are not within the act; for though the intent of the
124. See ante statute be, to have excepted them from enrolments in the courts
(C). of Westmifister only, yet the statute is so worded, that they are

discharged from any enrolment at all ; and therefore the posses-
sion of such lands is executed from the date of the deed.

3. Tlie Time of Enrolment.

2 Inst. 674. It must be enrolled within six months from the date, which

6 uo. 62. shall be accounted according to the computation of twenty-eight

days pei^ month ; for month, in its proper and original signifi-
cation, is the space of time measured by the complete course of
the moon ; as the year is the time measured by the complement
of the sun's course.
Hob. 410. Mo. From the date, and from the day of the date, in this case, is
674 5 Co 1 b. taken as all one, as it is in all other cases of computation, and
Dyer, 218 b. therefore the enrolment may be on the day of the date, or on the
4 Leon. 4. pi. last day of the sixth month after the day of the date; for though
^ o.'^if'^^'-"'^' when an interest passeth from the day of the date, the day itself
pi. 1 Covvp *^ excluded, yet when a time is stinted, in which an act ought
718, Doug!, to be done, it is in order to hasten the doing of that act; and
465. sTerniR. therefore, the doing of it on the day from whence the period li
^^^' first reckoned, is within the time appointed ; and the last day of

the sixth month is within the words of the time given.
Hob. 140. If the deed has no date, the six months are to be reckone4

2 Inst. 674. from the delivery, but not otherwise. \

(F) The Manner of pleading Bargains and Sales.

Co. Lit. 225 b. A BARGAIN and sale is a deed enrolled, and as such must
251 b. 2 Inst. be pleaded ; and the deed itself, whereby the use originally

673. 4 Co. 71, passeth, being a matter in pais, must be produced and not the

tend

BARON AND FEME. Gyi

tenor of the deed, which is on the roll oUecord: for though the 5 Co. 53.
enrolment being on record is of undoubted veracity, beino- the 2R0II. R.119.
transaction of the court, yet the private deed has not the sanction
of a record, though publicly acknowledged and enrolled ; for it
might have been falsely and fraudulently dated or ill executed.

The party that claims by any bargain and sale must shew in Yelv. 215,
what court the deed is enrolled, because he must shew all thintrs Woriy and
in certain that make out his title ; otherwise his adversary would P"'''y- Cro.
be put to an infinite search before he could traverse with se- ^^'^'^^^- ^'^'
curity.

In debt for rent the plaintiff declared upon a lease made by a Allen, 19.
stranger, who after bargained and sold the reversion to the plain- ^'"S and So-
tipper indenturam dehito modo irrotulat. in curia Cancellarice ; and f^r 221 sSe
after verdict for the plaintiff, judgment was arrested, because it 34.' S. C. and*
was not alleged that the enrolment was within six months, nor judgment ar-
secundumfot^mam statuti ; and dehito modo will not help it, for it \^^^^ accord-
might be so at common law. Sl± *;

be an enrolment at common law.

If a man makes a lease for years the 10th of May^ and after- por this mde
wards bargains and sells his lands, and antedates the deed by Owen, 138.
making it the 10th o^ April, and the enrolment is also as of that Leon. iss.
time, the lessee is without remedy, for he cannot aver against |Leon i"5
the record. • i76. Savil,9i.

cont.y and head of Pleas and Pleadings.

In pleading a bargain and sale the party ought regularly to r
aver payment of the money. yi^i^ Moor,

404. But the want thereof is helped after verdict, upon non concessit ; for it must be intended
proved at the trial. Lev. 308. 2 Stra. 1269. Ld. Rayra. 111. Vent. 108. T. liaym. 200.
[By 10 Ann. c. 18. § 3., if a bargain and sale enrolled be pleaded with a profert, a copy ex-
amined, and proved on oath, signed by the proper officer, having custody of such enrolment,
shall be of the same effect as the original. — The endorsement on the deed, by the proper
officer, is always received as sufficient evidence of the enrolment. Dougl. 56. If divers per-
sons seal a deed, and but one of them acknowledge it, and it be thereupon enrolled, this is a
good enrolment within the statute, and it may be given in evidence, as a deed enrolled. Thurle
V. Madison, Sty. 462.]

BARON AND FEME.

(A) Who are esteemed Husband and Wife ; and herein

of the Legality of the Marriage, and Marriage
Contracts.

(B) Of the Power given the Husband by Law over the

Person of his Wife ; and herein of her Remedy
for any Injury done by him.

Y y 2 (C) or

69^2 BARON AND FEME.

herein,

1. Of the Real Estate in her Right.

2. Of her Chattels Real, or Leasehold Interests.

3. Of her Personal Estate in Possession, and Choses in

Action.

(D) Of the Husband's Right to Things accruing to

the Wife during Coverture.

(E) Of the Wife's Acts and Agreements before Mar-

riage, in what Cases revoked and made void
by the Marriage.

(F) Where the Husband shall be liable to the Wife's

Debts contracted before Marriage ; and herein
of a Wife that is Executrix or Administratrix.

(G) Where she alone shall be punished for a Criminal

Offence ; and where the Husband shall be an-
swerable for what she does in a Civil Action.

(H) Of her Contracts for Necessaries ; and how far
the Husband is bound by such Contracts.

(I) What Acts done by the Husband or Wife, alone
or jointly with the Wife, will bind the Wife ;
and herein of her Agreement or Disagreement
to such Acts after the Death of the Husband.

(K) Where the Husband and Wife must join in bring-
ing Actions.

(L) Where they must be jointly sued.

(M) Where a Wife shall be considered as a Feme Sole ;
l^and herein of her separate Estate.]

What right accrues to the representatives of either of them,
on the dissolution of the marriage, vide head of " Executors
AND Administrators."

(A) Who are esteemed Husband and Wife ; and
herein of the Legality of the Marriage, and Mar-
riage Contracts.

For the learning on this division of the subject, see tit. " Mar-
" RiAGE and Divorce," Vol. V.

(B) 01

(B) Of the Power given the Husband by LaWy S^^e. 693

(B) Of the Power given the Husband by Law, over
the Person of his Wife ; and herein of her Remedy
for any Injury done her by him.

n^HE husband hath, bylaw, power and dominion over his (a)Crom.28.
wife, and may keep her by force within the bounds of duty, '36. F.N. B.
and may beat her («), but not in a violent or cruel manner; for, jj^^j \^g^^Q^'
in such case, or if he but threaten to beat her outrageously, or Sid. 113. iis, *
use her barbarously, she may bind him to the peace by suing 1 Black. Com.
a writ of supplicavit out of Chancery {b)\ or may apply to the *^^* ^^^ ^^'
Spiritual Court for a divorce propter scevitiam. .-'j,^ Crom. 135.

[Or by application to the Court of K. B. or a justice of the peace. Fost. 359. 1 Hawk. P. C.
253. Ca. temp. Hardw. 74. 2 Stra. 1202. 1 Burr. 621. 703. 11 Mod. 109. And the hus-
band may demand surety of the peace against the wife. 2 Stra. 1207.]

But a wife cannot, either by herself or her prochein amy, bring Preced. in
a Iwmine replegiando against her husband ; for he hath by law a Chan. 492.
right to the custody of her, and may, if he think fit, confine her, ^^^ cm'^'«'
but he must not imprison her ; if he do, it will be a good cause
for her to apply to the Spiritual Court for a divorce 2)roptcr scevi-
tiam; and the nature and proceedings in the writ de homine reple-
giando, shew that it cannot be maintained by the wife against
her husband.

A wife separated by articles, in consideration of money re- Burr. Rep.
ceived by the husband, with covenants from him, cannot be ^'*^' ^ ^}^?'
seized by him, or forced to live with him. (c) ^^^^^ of iinrea-

sonable or improper confinement, the courts will relieve the wife, on habeas corptu. Lord
Ferrers's case, 1 Burr. 634. &c. ||Lord Vane's case, M»/ra.l| [If, upon the return of a habeas
corpus sued out by the husband to bring up the wife, it appear that he had used her ill, and
she exhibit articles of the peace against him, the court will not order her to be delivered to
him. Anne Gregory's case, 4 Burr. 1991.]

II Lady ^awe exhibited articles of the peace against her husband Lord Vane's
propter sccvitiavi, charging that she was separated from her hus- ^^^^y 13 East,
band under articles; that at Christmas, 17*2, she was seized by ^'^^•«°^^'
his servants and carried to his house, and confined eleven days ;
that she escaped, and that she had heard and believed that a
servant said he was ordered by my lord to bring her alive or
dead, and therefore she swore her life was in danger. These
articles were exhibited in Michaelmas term IT'tS; and in Hilary
term following Lord Vane came into court, and moved by
counsel to discharge these articles, because it did not appear
on the face of the articles that Lord Vane had done any one
act to induce his lady to swear the peace against him, or make
it necessary for him to give security for keeping the peace ;
that the husband has a right to seize his wife, to carry her
home, and even to confine her if he think proper : that by the
common law he had power to govern, rule, and cliastise her
reasonably, and although she may sue a supplicavit in Chancery
against her husband for cruelty, and to find sureties that he
do not beat or evil treat her, yet even in that case there is a
proviso aliter quam ad virum simm, ex causa rcgiminis et casti-
gaiionis tixoris siuCy licite rationabilitcr pcrtinct. F. N. B. 542.

Y y 3 (8lh

694

BARON AND FEME.

(a) A deed
providing for
a future sepa-
ration between
husband and
wife is void.
Westmeath v.
Westmeath,
1 Dow. P. C.
N. Ser. 519.
Hindley v.
Westmeath,
6 Barn. & C.
207.

(8th edit.) ; that as to the articles of agreement they were set
aside in equity as unconscionable ; and a copy of the order was
produced, but the court said they could take no notice of it.

Upon a rule to shew cause it was answered, and so resolved
by the court, that every person was entitled to exhibit articles
of the peace for the security of his person, and to allow them
was the constant course of the court, as a security against im-
mediate danger : that it was not usual to enquire into the truth
of circumstances charged in the articles, but the same must be
received as true till the contrary appears upon a proper prose-
cution ; that in the present case, taking all these articles to-
gether, and that Lord and Lady Vane were under agreement to
live separate (a), and that he seized her by force and confined
her eleven days, that he had threatened to seize her again, and
ordered her to be brought home dead or alive ; it doth appear
upon the whole that she had a reasonable foundation to require
sureties of the peace against him. Vide Fitz. N. B. 542. (8th edit.)
If the wife be in fear or doubt of the husband that he will
beat or kill her, she may sue a suppUcavit in Chancery against
her husband to find sureties that he doth not beat or evil
entreat her.

It was likewise said by Sir JoJm Strange^ that, taking this case
up upon the articles of agreement only, if Lord Vane should
force his wife to a cohabitation she has a right to be relieved ;
and for that purpose he cited Listor's case, Trin. 8 G. 1. Cap-
tain Lislor, after articles of separation between him and his wife,
the Lady Raisolinsoyi^ seized her by force, and carried her home,
in order to compel her to live with him. She brought a habeas
corpus^ and after argument at the bar it was agreed by the court,
that if a wife will make an undue use of her liberty by squander-
ing away her husband's effects, or going into bad company, it
was lawful for her husband to lay her under restraint ; but where
that did not appear, he could not confine her as a prisoner,
though even in his own house ; and because it appeared in
that case that they were parted by consent, and under articles
to live separate, the court ordered that she should have her
liberty. ||

herein,

10 Co. 42.
2 Inst. 510.
Sid. 11. Roll.
Abr.347. ||See
Roper on
Husband and
Wife, c. 2.
(2d edit.)||

1. Of the Real Estate in her Eight.

Tj^ROM the time of the intermarriage, the law looks upon the
husband and wife but as one person, and therefore allows
of but one will between them, which is placed in the husband,
as the fittest and ablest to provide for and govern the family ; and
for this reason, the law gives the husband an absolute power of
disposing of her personal property, no act of hers being of any
force to affect or transfer that which by the intermarriage she

has

has resigned to him : but the freehold and inheritance of the wife
is subject to other rules and regulations; for the husband by the
marriage does not become absolute proprietor of the inheritance;
but, as the governor of the family, is so far master of it as to
receive the profits of it during her life, but hath no power to
make an absolute sale of it without her consent.

If a man marries a woman seised in fee, he gains a freehold Co. Lit. 351 a.
in right of his wife. [But it must be pleaded, that the husband 273 b. Dougl.
and wife, in right of the wife, were seised in fee, not of freehold u^^j
merely.] make a tenant

of the prcBcipe of his wife's estate, for the purpose of suffering a common recovery of it with-
out the wife's joining him in a fine. Robinson v. Cummins, Cruise on Recoveries, 52. Co. Lit.
326 b. note. Pig. 72. Ro. Abr. tit. Recovery (A), pi. 4.] Where the husband or wife are
attainted, and the lord by escheat shall enter, or the king have the pernancy of the profits,
and how far such freehold will work a remitter to the husband, vide title Curtesy of England.

2. Of her Chattels Real, or Leasehold Interests.

The marriage is a gift in law to the husband of all the wife's 7 H. 6. 1. b,

chattels real, as a term for years in right of the wife ; so of Bro. 24. Co.

estates by statute-merchant, statute- staple, elegit, Sfc.; and of .^J5- ^^- ^^j:

these he may alone dispose, forfeit, or they may be extended for |^gj.jg ^ p^j.

his debts ; but if he makes no disposition of them in his life- grean, 1 H.

time, they survive to the wife (a), and therefore he cannot devise Black. 535.||

them : 11 if he do not alien them and he survive the wife, the law [An assignment

o I t n p rcji 1 GS*

gives them to him as a marital right, and no administration is tateofthe
necessary to be taken out by him.H wife will bind

her, though it be made without a consideration. So if the wife has a judgment, and it is
extended on an elegit, the husband may assign it without a consideration : so if a judgment is
given in trust for a feme sole, who marries, and, by consent of her trustees, is in possession of
the land extended, the husband may assign over the extended interest : and by the same reason,
if the feme has a decree to hold and enjoy lands until a debt due to her is paid, and she is in
possession of the land under this decree, and marries, the husband may assign it without any
consideration ; for it is in nature of an extent. 3 P. Wms. 200.] {a) The husband is only
possessed of a term in her right, and the term or legal interest continues in her. 7 H. 6. 2.
Roll. Abr. 342. Co. Lit. 351.

If a woman lessee for years takes husband, and he after pur- 2 Roll. Abr.
chaseth a new lease to them both for their lives of the same 495.
lands, this is a surrender in law of the first term, and shall bind
the wife, because it amounts to an actual disposition thereof,
which the husband had power to make.

If the husband possessed of a term for seventy years in right of Poph. 5. 97. «
his wife, makes a lease of those lands for twenty years, to begin ^^^- ^^- ^'^*
after his death, this is good, and shall bind the wife ; because the ^^y^ ' ^,^^ ^^^
term being but a chattel, he had power to disjx)se of it wholly, piowd. 4 is.
and by consequence may dispose of any less interest thereout as he Cro. Eliz. 5.y.
thinks fit ; and this being a present disposition which he cannot ^'^^- ^ "• ^^''•
revoke, binds the interest of the lands immediately, though it (jh„r,^p 3/
takes not effect in possession till after his death ; and therefore g Cor97. Roll,
this differs from a devise of such term, or any part thereof, by Abr. 851.345,
the husband, by his will ; for that not taking effect, nor binding ^^'^' 9i^'',l**
the interest at all till after his death, conies too late to prevent ,-,^'^ Vent.*
the operation of law, which, at the instant of death, imniciliately 259. KUc; It

Y y 4 casts

696

appears by all
the above cited
books, that if
husband makes
a lease of part
of the wife's
term, render-
ing rent, and
dies, that his
executors shall
have the rent,
and not the
wife ; though
she hath the
reversion, be-
cause not party
or privy to the
lease ; and the
rent is not in-
cident to the
reversion. ||It
appears, that
although the
wife were a
party to the
under lease,
she would not
be entitled to
the arrears of
rent due on
her husband's
death ; but if
the rent had
been reserved
by the hus-
band to him-
belf and wife,
she would
have been so
both to the
future rent
and arrears
due, because,
they remaining
in action, and
being due in
respect of the
joint interest of
to the wife. 4

Co. Lit. 46 b.
Roll. Abr. 345.
\\Sed vide
4 Vin. Ab. 50.
pi. 18. in mar-
gin. Judgment
for husband in
quare impedit
for the wife's
advowson : — th

1 Roll. Abr.
245. 1 Vern.
396. 2 Leon.
104. Scd vide

BARON AND FEME.

casts it upon the wife surviving, and so defeats and destroys
the operation of the devise: but as to the residue of the term,
whereof the husband makes no disposition in his life-time, the
wife, if she survives, will be entitled to it; because, as to that,
the law is left to take place, as it would have done for the whole,
if he had not prevented it by such his disposition of part. But if
the husband had granted away the whole terra upon condition,
and died, though the condition were afterwards broken, and his
executors entered for breach thereof, yet would the wife be for
ever barred to claim any interest in the said term, because there
was a total disposition thereof by the husband in his life-time, and
the breach or nonperformance of the condition was perfectly
contingent and uncertain : besides, that the breach of the con-
dition happened not till after his death, and so the disposition
continued perfect and uninterrupted during his life; for, if the
condition had been broken during his life, and he himself had
entered for breach thereof, it might be a great question if the
wife surviving should not have the term after his death ; because,
by his re-entry, for the condition broken, he is restored to the
whole term in statu quo ; and then being possessed of it in right
of his wife, as he was before, it seems but reasonable the wife
should have it, if she survives the husband, as she would have
had if no such disposition had been made, since that disposition
is now defeated and gone. Also such term, whereof the husband
is possessed in right of his wife, may be extended for the debts,
or forfeited for the crimes of the husband, for these are legal
dispositions thereof which shall bind the wife ; but if the husband
should grant a rent, common, S^c. out of such term, and die, this
would not bind the wife surviving, because the term or possession
itself being left to come entire to the wife, all intermediate charges
or grants thereout by the husband determine with his death ; for
the title of the wife to such term hath relation to the time of their
intermarriage, and so is paramount to all collateral charges or
grants made thereout by the husband after. But a grant by the
husband of the herbage or vesture of such land which he held in
right of his wife for years, will be void after his death, because
they are part of the land itself, and not collateral to it.

the husband and wife in the term, would, with their principal, the term, survive
Vin. Abr. (D), a. 117. Roper, Baron and Feme, c. .5. § 2.||

If the husband and wife be evicted of a term which he hath in
right of his wife, and the husband bring an ejectment in his own
name, and have judgment to recover, this makes an alteration
in the term, and vests it in the husband ; because, not making his
wife a party to the recovery, he takes the whole wrong to be done
to himself; and consequently, if he recovers, it must be by virtue
of that right whereof he was dispossessed,
husband dies, the wife presents. Hal.MSS. Co. Lit. 46 b. n. (Jb) |j

II It seems that if there be a dispute between the husband
claiming a term for years in right of his wife, and another person
relative to their title^ and they refer the matter to arbitration,

and

and an award is made of the term to the husband, the property cont. Vin. Abr.
in it will be changed by the arbitrament so as to amount to a Arbitrament
reduction of the term into possession, which will defeat the wife's (^^- ^°^ ^-
right by survivorship. II "TandS*"

1 Roper, Husband and Wife, 185.

If a term for years be granted to a feme-covert and another ; or piowd. 4i8.
if a feme-sole and another be joint-tenants of a term for years, and Co. Lit. 185.
the feme take husband, yet in both cases the joint-tenancy still con-
tinues; for the marriage makes no severance or alteration of it,
but gives the husband the same power his wife had before, by an
actual disposition of her moiety to break the joint- tenancy, and
bind his wife's interest therein : but without such disposition the
joint-tenancy continues; and, if the husband dies, the whole shall
go accordingly. So if such joint-tenants are ousted of the term, the
wife shall join with the husband and the other joint-tenant in eject-
ment, and the wife shall have judgment to recover as well as the
husband; and if in such case, before any actual disposition made
by the husband, his wife die, the whole term shall go to the sur-
viving joint-tenant, and no part thereof to the husband; because,
though the husband, if he survives, is by law to have all chattels
real and personal of his wife's, and this term was a chattel real,
yet the title of the other joint-tenant, to have the whole by survi-
vorship, coming at the same instant, and being the elder title,
shall prevail against the husband.

A lease was made to the husband and wife for years, they Cro.EHz. 912.

enter, and the lessor afterwards enfeoffs the husband, who dies Downing and

seised, the wife survives and claims the term ; and betwixt her and Seymour. Qu.

the heir of the husband the dispute was. Whether the term was barc^n and

extinguished? And per totam Curiam^ by acceptance of the feoff- sale, or fine, if

ment the husband hath surrendered the term, and then it is extin- the term, in

guished, and the wife barred of any title thereto : but they held ^'^'^ ^^^^1

that it would have been otherwise if the conveyance had been to su^rend'ered ?

the husband by bargain and sale enrolled, or by fine; for these because the

meddle not with the possession, but only carry such interest as the lease being

reversioner had in him, and then the husband might have the '"^'^^ after

term in right of his wife, and the inheritance in his own right; "here^^e'^o^"

but l)y the feoffment he admits the lessor to have power to come moieties be-

upon the possession to make livery; which, if the term should tween husband

stand in his way, he could not do; and therefore such admit- and wife, the
. ^ J. J *u f husband can-

tance amounts to a surrender thereof. ^^^ ^^ ^^^jj ^^

be possessed thereof in her right, more than in his own, but both are possessed by entireties
therefore it should seem in that case likewise, that the term would be merged.

A husband possessed of a term for years in right of his wife. Mo. pi. 304.
with remainder to himself in fee, by deed enrolled, bargains and
sells the land for money, and dies, and his wife enters, claiming
the residue of the term ; and the opinion of the book seems to be,
that her claim was good ; for though a feoffment, in such case,
by the husband, would have passed the term which he had in
right of his wife by way of union and extinguishment, yet by
bargain and sale nothing passeth but a use ; and by creation and Plowd. 423.

grant

698 BARON AND FEME.

grant of the use, the term which he had in jure uxoris shall nob
pass; so that this being no disposition of the legal interest of th(j
term, but only of a use, (which, in respect of his inheritance in
remainder, he might well create,) this was good as to the term
during the life of the husband only; and then the wife, after hi-
death, shall have the lease discharged of it, as if the husband ha^
granted a rent, Sfc. out of the wife's term; but if there had
been the words grants assign, or any other word which would
have passed the legal interest of the term, this would have barred
the wife; but the words bargain and sell, by 27 H. 8. c. 16*
could have no operation to raise a use which shall be executed
in possession, but only out of the reversion whereof the husbanq
was seised, as the statute speaks; and therefore, this being %
terra in gross, whereof the husband was not seised, but only
possessed, the bargain and sale passed only a use thereof at com-i-
mon law, and not by virtue of that statute ; and then, not being
executed in possession, the use at common law, which was col-
lateral to the land, fell off with the death of the husband who
created it, as other collateral charges of his would do ; and by
consequence, the wife's title to the residue of the term continues
good ; but if the husband had been possessed of such term in
gross in his own right, without an inheritance in him, and had
made a bargain and sale thereof, though this would not have
been executed by the statute in possession, for the reason before
mentioned, yet it would have passed a use at common law,
which would have made him trustee in equity for the bargainee.

Roll. Abr. 345. If a man marries a woman who has a term for years settled on

Lane, 54, 55. j^g^ \^ trust, the husband may as well dispose of this trust, as if

[(a) It IS true, ^\ \ ^ • I . • x. f \

that the hus. the legal mterest was m her. (a)

band is entitled to dispose of the trust of the wife's term equally with the term itself, and
that whether it be the trust of a present actual and vested interest in the term ; Prec. Cli.
418. Factor v. Samyne, 2 Vern, 270. Bates v. Dandy, 2 Atk. 207.; or of a possible or con-
tingent interest, if it is a legal interest, that is, such an interest as, upon the determination oi
the previous estate, or the happening of the contingency, will immediately vest in possession
in the wife ; unless, perhaps, in those cases where the possibility or contingency is of such a
nature that it cannot happen during the husband's lifetime. Co. Lit. 46 b. 10 Co. 51 a.
Hutt. 17. 1 Salk. 326. But it is an exception to this rule, at least in equity, that if a future
or executory interest, in a term or other chattel, be provided for the wife, with the consent rf
the husband, the husband cannot dispose of it from her; as it would be absurd and unfair irl
the highest degree, that he should be allowed to defeat his own agreement. But this sup-
poseth the provision to be made before marriage ; for if it be made subsequent to the marriage,
it is a mere voluntary act, and void against an assignee for a valuable consideration. Doyly v.
PerfuU, 1 Ch. Ca. 225. Turner's case, l Vern. 7. Pitt v. Hunt, Id. 18. Walter v. Saunder
1 Eq. Ca. Abr. 58. Co. Lit. 351 b. note.]

Stead v. || And if the husband covenant or agree to grant an undei

Creagh, lease of the wife's term for years, such agreement is a good diS'.

9 Mod. 43. position of the term in equity, and will bind the wife in case of
nison, 6 Ves. the husband's death without granting the lease.
385. ; and see 1 Scho. & Lef. 52.

Pitt v. Pitt, Where the wife was entitled to a leasehold estate, subject to a

iTurn. Ch.R. mortgage, and upon transfer of the mortgage the husband cove-
nanted for payment of the money, and the equity of redemption
was reserved to the husband and wife, their executors, adminis

trators

099

Itrators, and assigns ; it was held, that the wife's right by sur-
vivorship was not affected.

If the liusband mortgages the wife's term, and by payment of
the money at the day the estate of the mortgagee ceases, it seems

I that the interest of the wife in the term will not be affected. If
the money be not paid at the day the estate of the mortgagee
becomes absolute, and the alienation of the term being complete
at law, the wife's legal right by survivorship is defeated ; and if
the equity of redemption be reserved to the husband alone, it
seems that her right will also be defeated in equity by analogy
to the cases, in which it has been held, that she is bound by the
husband's voluntary assignment of her equitable chattels real.

But if the equity of redemption were reserved to the husband
and wife, she would be entitled to it by survivorship.

If in either case the husband, after the estate of the mortgagee

I has become absolute, pays the money and takes an assignment to

j himself, the property will be altered, and it seems the wife's
right will be excluded.

The husband's agreement to mortgage the wife's term will,

i however, be enforced against her only to the extent of the
money due.

If the husband survive his wife, and upon that event become
entitled to her term for years, he succeeds to it, subject to all the
charges and equities which affected it in the wife's hands.

On mortgages, by husband and wife, of the wife's estate, the

j equity of redemption is sometimes not reserved to the wife ; and

I the question arises, how far she is bound by a reservation of the
equity in any other manner.

The principles deduced from the cases have been thus laid

I down. — 1st. When the mortgage-deed contains no limitation
of the estate beyond the security, and reserves the equity of
redemption to the husband alone, in that case the wife's original
sole interest will be preserved to her, on the principle, that she
being the sole owner of the estate, the mere form of the reserv-

I ation of the equity of redemption is insufficient, of itself, to alter
or charge the prior title to the property ; for the circumstance
of the reservation having been made otherwise than to the
owner of the estate, (the wife in the present instance,) is pre-

i sumed by law to have originated either in the inaccuracy of the
language of the clause, or in the mistake of the person who
prepared or engrossed the deed, neither of which circumstances

j 18 allowed to prejudice the person having the prior title. But,

' 2d. When the mortgage-deed contains a settlement of the
wife's estate, and the mortgage, or the form of reservation of the
equity of redemption, has nothing to do with the subsequent
limitations of the property, but is perfectly distinct from them,
as, where the mortgage is for a term of years, and the limitations
apply to the inheritance, in that case, these limitations, through
the medium of the wife's fine, will take effect; and the persons
entitled to redeem, will be, not the wife under her prior title,

but

Radford v.
Young, 2 P.
Wms. 366.

Pitt v. Pitt.

1 Preston on
Abst. 345.

Bates V. Dandy,
2 Atk. 270.
1 Russell R.
33. notu.

Moody v.
Mathews,
7Ves. 174.

2 Chan. Ca.
98. 161. Rus-
coinbe v.
Hare, 6 Dow.
P. C. 1.

1 Chan. R. lie.

2 Vern. 437.
2Bro. P.C. 1.
Jackson v.
Innes, 16 Ves.
356. 1 Bligh
P.C. 104.;
and see Reeve
V. Hicks,

2 Sim. & Stu.
403.

700 BARON AND FEME,

but the persons interested in the estate under the uses or linii
ations contained in the mortgage-deed. ||

3. Of her Personal Estate in Possession, and Choses in Actio|i. ,

Doct. and All the personal estate, as money, goods, cattle, household

Stud. Dial. 1. furniture, ^c, that wei-e the property, and in the possession of

^ K (\K A ^^'^ ^'^^ ^^ ^^ ^^^cc\^ of the marriage, are actually vested in the

therefore husband {a) ; so that of these he may make any disposition in his

chattels per- life-time, without her consent, or may by will devise them, and

sonal which they shall, without any such disposition, go to the executors or

she has in au- af^ministrators of the husband, and not to the wife, thou";h she
ter droit as . , . ' o

executrix, or survive hmi.

guardian in socage, &c. shall not go to the husband. Co. Lit. .551. But a bare possession of
personal goods is not by the marriage given to the husband ; for if goods are bailed to a feme
sole, or if she finds goods, and after marries, the action of detinue must be brought against
both husbmd and wife. Co. Lit. .^Sl. The civil, or scarce any law, gives so great a power to
the husband over the estate of the wife, as the common law does. Sid. 111. by three jiidfies
arguendo. [The wife's paraphernalia are, by the common law, excepted out of the power of
the husband, so that he cannot devise them. 1 P. Wms. 729. But by articles before marriage,
expressly barring her of every thing she can claim out of her husband's estate by common law,
custom, or otherwise, the husband is entitled to these. 2 Atk. 642. It seemeth doubtful,
whether the paraphernalia are exempted from the claim of creditors. 2 Atk. 79. Ambl. 6.

2 Ves. 7. ||17 Ves. 273. 3 Atk. 393. Roper, Husband and Wife, c. 17. $ 3^1 Her necessr.ry
apparel certainly is. 2 Black. Com. 436. 2 Atk. 105.]

Co. Lit. 351. But choses in action, as debts due to the wife by obligation,

3 Mod. 186. S^c., which are to be demanded by action, though they are like-
But where the ^isg. sQ fgj. vested in the husband that he may reduce them into
feme sole are possession, yet if he dies before any alteration made by him,
in the posses- they shall go to his wife; nor shall they, without such alteration,
sion of another survive to the husband upon the death of the wife, or he have

by trover or ^ right to them, but as he is entitled as administrator to his
baument, and .j; ",
she marries, wiie. [a.)

the property which continued in the wife is vested in the husband, and he alone, without hi*
wife, may bring detinue for them. Sid. 172. Keb. 641. Moor, 25. pi. 85. Vent. 261-
2 Lev. 107. [In equity, a settlement made before marriage, if made in consideration of tlie
wife's fortune, entitles the representative of the husband dying in the wife's lifetime, to the
whole of her things in action ; but it hath been said, that if it is not made in consideration of
her fortune, the surviving wife will be entitled to the things in action, the property of which
hath not been reduced into possession by the husband in his lifetime: so, if it is in consider-
ation of a particular part of her fortune, such of the things in action as are not comprised in that
part, it hath been said, survive to the wife. Cleland v Cleland, Pr. Ch. QZ. 2 Vern. 502.
Adams v. Cole, Ca. temp. Talb. 168. In the case of Blois v. The Countess of Hereford,
2 Vern. 501., a settlement was made for the benefit of the wife, but no mention was made of
her personal estate. Lord Keeper decreed, that it should belong to the representatives of the
husband ; and said, that, in all cases where there was a settlement equivalent to the wife's
portion, it should be intended that he is to have the portion, though there be no agreement
for that purpose. Eq. Ca. Abr. 69.] ||And it appears that if the settlement is made in con-
sideration of her fortune, without saying more, it entitles the husband to all her then personal
property, but not to such as afterwards accrues to her ; but aliter if it appears that it was the
agreement between the parties that he should have not only her then present, but all subsequently
acquired personalty; and where any of her choses in action are not piuxhased by the hnsbapJ
by settlement, they will be subject to her rights of survivorship and of provision by settlement.
Druce v. Dennison, 6 Ves. 595. Burdon v. Dean, 2 Ves. jun. 607. Elibank v. Montolii^i,
5 Ves. 737. Mitford v. Mitford, 9 Ves. 89. Carr v. Taylor, 10 Ves. 574. Beresford v. Hol)-
son, 1 Madd. 37 1.]] (a) Administration of right is to be granted to the husband. 1 Roll. Anr.
910. And by the stat. 29 Car. 2. c. 3. § 25. it is enacted, that the statute of distributions shi/t
not extend to the estates of feme coverts. [And the representative of the husband is entitled f.s
much to this species of his wife's property as to any other ; for the right of administratis »

follows the right of estate ; and ought, in case of the husband's death, after the wife to be
granted to the husband's next of kin. Bacon v. Bryant, Vin. Abr, tit. Executors (K)/pl. 25.
Humphry v. Bullen, Id. pi. 27. Elliot v. Collier, 3 Atk. 526. i Ves. 15. i Wils. 168.*
Bouchier V. Taylor. Hargr. Law Tracts, 47.37. Bro. Rep. 414. If, therefore, administration
de bonis non of the wife be granted to any third person, he is a trustee for the representative
of the husband. Squib v. Wyn, 1 P. Wms. 378. Cart v. Rees, Id. 381.]

[Money due upon mortgage is considered as a thing in action, Bosvil v.

and subject to the disposal of the husband only, whether it be a R^^"'*^'"' ^ P*

mortgage in fee or for a term: for though in the case of a mort- Bates v°'^

gage in fee, the legal fee of the lands in mortgage continues in Dandy, 2 Atk.

the wife, she is but a trustee, and the trust of the mortgage 208.||Turnerv.

follows the property of the debt.] ||And if the husband sur- Crane, i Vern.

vives the wife, the heir of the wife, who has the legal estate, is a q„ j^i^p^. ^ g

trustee for the husband II 685. Sed qu'.

Whether there is not a distinction in this respect between a mortgage in fee, and for a
term of years, l Scho. & Lef. 176. 1 Roper, 226.||

If a feme sole obligee marries, and the husband makes a letter Roll. Abr, 342.
of attorney to J. S. to receive the money, who receives it accord- Moor, 452.
ingly, and the feme dies, the husband shall have an action of ^°'"^- ^^o.
account for the money; for, by the receipt, this was become a
thing in possession.

If a legacy be devised to a feme, who takes husband, and the Golds. I60.
baron makes a letter of attorney to J. S. to receive the legacy, Roll. Abr. 342.
and he receives it accordingly, this, by his receipt, is become the
chattel of the husband.

So if the baron and feme had made a letter of attorney to Moor, 452.

J. S. to receive the legacy, and he had received it accordingly, ,°' ^^ ,'/*^*
, ,. . ,. o J^ . , i.. ^ - 350. Golds,

by this receipt this ceases to be a thing in action, and is become 159 jqq^

a thing in possession ; and the husband or his executor, after

the death of the feme, may have an account upon this receipt

against J. S.

In one case (a) it is ruled, that a voluntary assignment by the (a) Squib v.

husband of the wife's choses in action, though void as between the Wyn, 1 P.

husband and the assignee, will yet have the effect of altering the (Jy."^'^^^'

property as between the husband and wife. But it seemeth to Dandy, 2 Atk.

be now settled (b) that the husband's assignment in such case 207. Jewson

must be for a valuable consideration, and that beyond the con- v. Moulson, Zrf.

sideration the assignment will not bind the wife surviving. f^* Saddmg-

o o ton V. Kins-

man, 1 Bro. Ch. R. 44. II Wright v. Rutter, 2 Ves. jun. 673. Becket v. Becket, 1 Dick. 340.
Johnson v. Johnson, 1 Jac. & W. 472. Stamper v. Barber, 5 Madd. 157.|| Volunteers, and
general assignees (whether by operation of law, or otherwise) are subject to the same equity,
with respect to the wife's property, as the husband is. 2 Atk. 420. 1 P. W^ms. 382. 4 Bro.
Ch. R. 159. It doth not seem to have been yet determined, that a court of equity will inter-
fere and interrupt the legal right of the husband, or of such assignees, where they can get
possession of the wife's property without the aid of the court. Winch v. Page, fiunb. 86.
Anon. Pr. Ch. 548. Harrison v. Buckle, 1 Stra. 248. Gardner v. Walker, Id. 503. Jewson
y. Moulson, 2 Atk. 420. IJSee 1 Roper on Husband and Wife, 228.|| But where the property
IS a subject of ciywi/aA/e jurisdiction, where they are obliged to go into equity in order to enable
them to recover it, there the court will oblige them previously to make a provision for the
wife. Jacobson v. Williamson, 1 P. Wms. 382. But as against an assignee of some particular
chose IK action, or trust term of the wife, for a full valuable consideration, such equity, it
seemeth, doth not arise. But see Sir Edward Turner's case, 1 Vern. 7. Pitt v. Hunt, Id. 18.
Tudor v. Sanizne, 2 Vern. 270. Packer v. Wyndham, Pr. Ch. 412. Walter v. Saunders, 1 Eq.
Ca. Abr. 58. pi. 5. Bates v. Dandy, 2 Atk. 207. HSee the report of this case from Lib. Reg.

1 Russell

702

BARON AND FEME.

Mitford V.
Mitford, 9Ves
87. See 2 Sim,
R. 1 67.

1 Russell R. 33.11 i*ope v. Crashaw, 4 Bro. Ch. R. 326. Qu. Whether in these cases o(pa
ticular assignments, any distinction hath been made between a trust term, and a chose in action
of the wife ? Cox's note in 1 P. Wms. 459.

Hit seems to be now settled that the choses in action of thje
wife will survive to her, notwithstanding an assignment by thie
husband (whether by his own act or by bankruptcy or insolvency),
unless the assignee, in the husband's life, reduce them into
possession, and this whether her interest be immediately re-
coverable by action, or be in reversion and expectancy.

A. bequeathed certain stock to trustees to place at interest,
and to pay such interest to B. for life, or until she married, and
upon her death or marriage A. gave the capital amongst C, Z).,
and E. the wife of M., equally ; M. the husband of E. became
bankrupt, obtained his certificate, and died, leaving E. surviving;
B. afterwards married. Upon the bill of the surviving trustee to
ascertain the rights of the widow E. and of her late husband's
assignees, the Master of the Rolls decided that E.^s title by sur-
vivorship prevailed against the general assignees of the husband.

A distinction was suggested in the case last cited, between a
general and particular assignee for a valuable consideration ; and
it has been held that the wife's title to her reversionary choses in
action is barred by the husband's assignment for a valuable con-
sideration ; but it is now decided that her title will prevail against
both general and particular assignee.

Husband and wife assigned a reversionary interest of the wife
in certain trust stock, as a security for an annuity granted by the
husband ; the husband took the benefit of the insolvent debtors'
act, and a general assignment was made of his property. The
person on whose death the wife was to take died, and then the
husband died, without having done any other act to reduce
the stock into possession. It was held, by Sir T. Plumer M. R.
that the assignee was placed in the same situation as the husband,
and, in the event of the husband surviving the wife, he would
have been entitled to the property ; but, as the wife survived the
husband, she was entitled against both the particular and the
general assignee.

This decision in Hornsby v. Lee having been called in question,
was fully considered by the same learned judge in another case of
a similar kind, wherein he confirmed his former judgment,
also Addenda to Vol. II. of that work.

A. by will gave stock to ti'ustees upon trust to pay the divi-
dends to B. for life, and after his decease to the testator's grand-
daughter C. during her life, and after the decease of the survivor
of B. and C. in trust for the children of C. share and share alike,
the shares to be vested at twenty-one or on marriage with con-
sent, notwithstanding the postponement of the time of pay

Worral v.
Marlar, 1 P
Wms. 459.
note.

Hornsby v.

Lee,

2 Madd. 16.;

and see Grey

V. Kentish,

1 Atk. 280.

Woodlands v

Crowcher,

l2Ves.l74.

See Roper,
Husb. and
Wife, (2d edit.)
c. 6. § 2., and

Purdew v.
Jackson,
iRuss. R.l.
This case is
confirmed by
Honner v.
Morton,

3 Russ. Q5. and ^^^^ yjjj.jj ^f^^j, j.jjg decease of B. and C. C. died, and one of hei

Watson V
Dennis, Id. 90
before Lord
Chan. Lynd-
hurst.

daughters married Z)., and, during the life of jB., joined with he
husband in selling and assignincj by deed her share in the stock
expectant on B.*s decease. The husband and B. both died
leaving the wife surviving; and the question was, whether tli

wil<:

wife was entitled to the stock by survivorship on the decease
of J5., or whether the purchaser for value of the reversionary
interest was entitled to it under his deed. And Sir Thomas
Plumer M. R., after full argument and a review of the cases, and
of the former decision in Hornsby v. Lee, held, that the assignment
of the reversionary interest could not be considered a reduction
into possession, and that there was no distinction between the case
of a particular and that of a general assignee, and, consequently,
that the wife's right by survivorship was paramount to that of
the assignee.

On a suit in the joint names of husband and wife for a legacy Adams v. La-
due to the wife, a decree for an account, or even for actual pay- ^^^3

ment, is not a sufficient reduction into possession to bar the y ., .^ ' ?

,^ , . , , . , . * I . '41.; ana see

wire s right by survivorship. loVes. 9i.

1 Eden's R. 502. 1 Jac. & W. 472. l Roper, 218.

And where a wife is entitled to a legacy, a mere appropriation Blunt v. Best-,
by the executor of so much of the testator's assets as is necessary f^^' ^ * ^^'
to discharge it is not a sufficient reduction into possession.

And the husband's receipt or possession of the chose in action Baker v. Hall,
must be in his character of husband, in order to defeat the wife's '^ Ves. 497.
title by survivorship. Thus, where a trustee and executor mar-
ried one of the residuary legatees in the will, his possession of
the testator's personal estate was held not a reduction into pos-
session of the wife's share of the residue, his possession being
only as trustee and executor.

So where a married woman is entitled to stock, the transfer of Wall v. Tom-
it to the husband along with another person, as trustees for her, I'nson, isVes.
is not a reduction into possession. "''

But it seems a transfer into his sole name is a reduction p
into possession, being equivalent to a receipt of money. et vide DosvieA

V. Earle, 12 Ves. 475.

The father of C, a married woman, after the marriage drew Nash v. Nash,
a check in her favour for 10,000/., and she received in lieu 2Madd. 133.
of it a promissory note from the bankers for that amount, and
C's husband received on the note 1000/., and also interest
upon it up to the time of his death. On the husband's death it
was held that C the wife was entitled to the note as a chose in
action, and that it was not reduced into possession by the hus-
band's receiving the 1000/. and interest.

So where Mrs. W., then being married, became entitled to Wildman v,
stock as next of kin of an intestate, and the administrator trans- Wildman,
ferred it into her name, describing her as the wife of J. TV., and
so it stood till J. JV.'s death, except that she had sold and trans-
ferred a part with his assent, the court held that the husband
had not reduced it into possession, and it survived to the wife.||

The interest of the wife's separate property is always payable 2 Ves. 56 1.
to the husband if he maintains the wife. But where he receives
a great part of her fortune (a), and will not settle the rest, a (a)5Atk. si.
court of equity will not only stop the payment of the residue
of her fortune, but will even prevent him from receiving the in-
terest of the residue, that it may accumulate for her benefit.

704

BARON AND FEME.

Pr Ch 414 If trustees pay the wife's separate fortune to the husband, it ii

Squire V. ' irrecoverable.

Dean, 4 Bro.Ch.R.326. ||The wife's assent was presumed; and see 4 Ves. 146. 16 Ves. 126,
As to what things shall survive to the wife, and what go tp

the husband's executors, see tit. " Executors (H), -i." As t^

the separate property of the wife, vide infrh.

Co. Lit 551.
Saik. 115.
Carth.251.
Where they
cannot take
by moieties,
vide head of
Joint-tenants
and Tenants
in Common.

Glover v. Pro-

grietors of
►rury Lane
Theatre,
sChitt.R. 117.

Carth. 251.
Sa!k.ll4. pl.2.
S.C. 4 Mod.
156. S.C.
Buckley 8f Ux
V. Collier,
(c) But if a
special indebi~
tatus assumpsit
had been
brought on an
express pro-
mise made the
wife, it seems
Jac. 77. Cro.
Salk.ll5.pl.4.
Ld. Raym. 73.
12 Mod. 891.
5 Mod. 69.
Chamberlain
and the wife
of Colonel
Hewson.

Roll. R. 426.
3 Bulstr. 264.
Roll. Abr. 343.
2 Roll. Abr.
293.

Salk.n5.pl. 4.
1 Vern. 261.
Decreed in
Chancery.

(D) Of the Husband's Right to Things accruing to
the Wife during Coverture.

TJ USB AND and wife are considered as one person in law, and
as having but one will between them, which is seated in tht;
husband as the head and governor of the family; and therefore
the law gives him the same right over any real estate accruing
to the wife during coverture, as if she were seised of it before
marriage; so of chattels real accruing to the wife : it also gives
him an absolute power over any personal estate or interest accru-
ing to the wife by gift, devise, or her labour.

llAnd where the wife had actually received the amount due for
her personal services, it was held that the husband could recover
it over again, the money having been paid after notice by the
husband not to pay the wife.|l

Indehitatus assumpsit was brought by husband and wife against
the defendant, in which they declared, that he was indebted to
them in such a sum of money for periwig-makers' work done by
the wife, ad damnum ipsorum ; and on demurrer, judgment was
given against the plaintiffs ; for this being a general indebitatus
assumpsit implied by law, the law will not imply any promise
made the wife (at), for she is a servant to the husband, who is at all
the charges in furnishing hair, ^c, and therefore the law implies
that the promise was made to him only, for breach of which he
alone ought to have sued.

it would be good, though they had both joined. Vide Cro. Eliz. 61. 96. Cro.
Car. 459, 2 Sid. 128.

If a feme covert sues a woman in the spiritual court for
adultery with her husband, and obtains a sentence against her
and costs, the husband may release these costs, for the marriage
continues, and whatever accrues to the wife during coverture
belongs to the husband : Per Holt C. J., on a motion for
prohibition.

But if the husband and wife be divorced a mensa et thoro, ani
the wife have her alimony and sue for defamation or other i
jury, and there have costs, and the husband release them ; this
shall not bar the wife, for these costs come in lieu of what she
hath spent out of her alimony, which is a separate maintenance,
and not in the power of her husband.

A legacy was given to a feme covert who lived separate
from her husband (a), and the executor paid it to the feme,
and took her receipt for it ,• yet, on a bill brought by the hus -

ban 1

(D) His Right to Things accruing during Coverture. 705

band against the executor, he was decreed to pay it over acrain, ,

with interest. ^ ["^^""l^^T^

separation had

been by agreement, and the agreement and separate maintenance decreed in Chancery? If
husband and wife are divorced a mensd et thoro, and a legacy is left to her, the husband may
release it. Roll. Abr. 345. 2 Roll. Abr. 301. Moor, 665. Cro. Eliz. 908. Noy, 45. Roll.
Rep. 426. 3 Bulstr. 264. Salk. 115. pi. 4. ||See 1 Roper, 241. 3 Barn. & C. 29l.|| [But
in an anonymous case, 9 Mod. 43., the husband, though divorced a viemd et thoro ; and though
the wife had alimony, was restrained by injunction from selling a term which belonged to the
wife. And in Newsome v. Bowyer, 5 P. Wms. 37., it was holden, that the husband being
attainted of felony, and pardoned on condition of transportation ; and the wife becoming after-
wards entitled to some personal estate, as orphan to a freeman of I/ondoti, it belonged to her
as a feme sole.] Though a man may by deed or will give any thing in trust for the separate
use of a feme covert, and this shall be out of the power of the husband, [yet it was formerly
very much doubted, whether the feme could take an estate to her separate use, unless trustees
were interposed. Harvey v. Harvey, 2 Vern. 659. 1 P. Wms. 126. S. C. Burton v. Pierpoint,

2 P. Wms. 79. But in Bennett v. Davis, 2P, Wms. 316., It was holden, that where one devised
lands in fee to his daughter, being a feme covert, for her separate use, without appointing any
trustees, it should be a trust in the husband ; for that there is no difference where a trust is created
by act of the party, and where by act of law ; and so it was decreed in Rolfe v. Budder, Bunb.
187. Darly v. Darly, 3Atk,399.; jjand see Parker v. Brooke, 9 Ves. 583. Rich v. Cockell, /r/.
375. Davison v. Atkinson, 5 Term R. 434. acc.\\ And equity will not only raise a trust,
where the object of the gift is to the separate use of the wife, but will also, from the nature
of some gifts, infer them to be to the separate use of the wife. Graham v. Londonderry,

3 Atk. 393. As to agreements by the husband after marriage, by which the wife claims a
separate estate, it was formerly understood that the wife must take through the medium of
trustees, or others, and not immediately from her husband; for unless by particular custom, as
by the custom of York, (Fitz. Prescription, 61. Bro. Custom, 56.) a feme covert is incapable of
taking any thing by the gift of her husband, Co. Litt. 3,, except by will, Litt. § 168. See also
Moyse v. Giles, 2 Vern. 385. Beard v. Beard, 3 Atk. 72. But in Lucas v. Lucas, 3 Atk. 270,
Lord Ilardwicke observed, that in equity, gifts between husband and wife had been often sup-

1 ported, though the law does not allow the property to pass. See Slanning v. Style, 3 P. Wms.
.134. ; and Calniady v. Calmady, there cited. Bietsow v. Sawyer, 1 Vern. 245. Moore y.
Freeman, Bunb. 205. ; and Mitchell v. Mitchell, there cited. Bell v. Hyde, Pr, Ch. 328. Gilb.
Eq. Rep. 83. Pybus v. Smith, 3 Bro. Ch. R. 340. Lord Hardivicke, indeed, alluded to cases,
I V) which the courts would not support such gifts; but those seem ^o be where their allowance
1 irould prejudice creditors, Slanning v. Style; and where the gift is of the whole of the hus-
: band's estate, Beard v. Beard, 3 Atk. 72. But though the wife may take a separate estate
• from her husband, and even have a decree against her husband in respect of such estate, Cecil
v. Juxon, 1 Atk. 278.; yet, if she do not demand the produce during his lifetime, and he main-
tain her, an accoimt of such separate estate shall not be carried back beyond the year. Powell
v. Hankey, 2 P. Wms. 82. Thomas v. Bennet. Jd. 341. Fowler v. Fowler, 3 P. Wms. 355.
Lord Tovvnshend v. Wyndham, 2 Ves. 7. Peacock v. Monk. Id. 190. Blagrave v. Blagrave,
Mich. 1789. This rule, however, proceeds on the notion of the wife's consent : but if, during
the husband's lifetime, she demand such account, and he promise to pay whatever is due tQ
her, she shall be allowed to come upon his estate, as a creditor, for the amount. Ridout v.
i Lewis, I Atk. 269. Countess of Warwick v, Edwards, 1 Eq. Ca. Abr. 140. pi. 7. Fonbl. Notes
on Eq. Tr. 94, 95.] ||And if the wife is non sancc memoricv, her consent to waive her claim, of
course, cannot be presumed. Brodie v. Barry, 2 Ves. & B. 39.||

II A bill of exchange payable to the wife is a chattel personal, M'Neilage v.

•od not a mere c/iose in action, and it vests absolutely in the ^^p '°^^Y*a

husband, without any indorsement by the wife, so tjiat he may 218^^'^nd sec

sue on it alone in his own namp. j East, 432.

Money in the Court of Chancery belonging to a married wo- Fodcn v. Fin,

man, if less than 200/., will be ordered to be paid to the husband, "ey» ■* '^""s-

though she has been deserted by him and opposes the petition. j jac.& w.^eg

The fund of a married woman, standing in the name of the Sansum v.

accountant-general to her account, may be pledged by her Dcwar,3Rusf,

Ibusband.ll ' -^ » » -^ 91.

Vol.. I. z z (K) Of

706

BARON AND FEME.

(E) Of the Wife's Acts and Agreements before Mar-
riage ; in what Cases revoked and made void by the
Marriage.

4 Co. 60.

5 Co. 10.
Kelw. 162.
Co. Lit. 55.
Hetl. 72.
Cro. Car. 304

"D Y the marriage the husband and wife become one person in
law, and therefore such an union works an extinguishment
or revocation of several acts done by her before the marriage ;
and this not only for the benefit of the husband, but Ukewise
of the wife, who, if she were allowed at her pleasure to re-
scind and break through, or confirm several acts, might be so
far influenced by her husband, as to do things greatly to her
disadvantage.

But in things which would be manifestly to the prejudice of
both husband and wife, the law doth not make her acts void ;;
and therefore if a feme sole makes a lease at will, or is lessee at)
will, and afterwards marries, the marriage is no determinatiori
of her will, so as to make the lease void ; nor can she herself^
without the consent of her husband, determine the lease in
either case.

So where a warrant of attorney was given to confess a judg-
pi, 9. Ill Show, ment to a feme sole, the court gave leave, notwithstanding the
3^8ur° 1469*^ marriage, to enter up judgment, for that the authority shall not
be deemed to be revoked or countermanded, because it is for thi
husband's advantage ; like a grant of a reversion to a feme sole^
who marries before attornment, yet the tenant may attorn after-
wards ; otherwise, if a feme sole gives a warrant of attorney, and

5 Co. 10. Hen
stead's case.
Kelw. 162.
Co. Lit. 55.
Cro. Car. 304

Salk. 117.

7 Mod. 53.\\

marries, for that is to charge the husband.

But if a feme sole makes her will, and devises her land to
J. S.i and afterwards marries him, and then dies, yet J. S. tak^
nothing by the will, because the marriage was a revocation of iC;
for as the law will not allow a woman under coverture to make
a will, lest she should be influenced by her husband in the dis-
position of her estate; so, for the same reason, a will made by a
feme sole is revoked by the marriage, lest she should be iil-
fluenced by her husband (if it continued after the coverture) tb-
revoke it, or let it stand, as it best answered his interest,
revive in the event of her surviving her husband. Mrs. Lewis's case, 4 Burn's E. L. 48. An4
where the intended husband agrees to give his wife power of maiiing a will q/Ker marriage, arid-
she afterwards makes one before marriage, the marriage will revoke it. Hodsden v. Lloyi,
2 Bro. Chan. R. 534. 2 Term R. 684.]

[A surrender of a copyhold estate by a feme sole to the use df
her will, if not made absolutely void, is at least suspended by u
subsequent marriage ; in either of which cases its operation Is
prevented.]

If A. on the one part, and B. and C, a feme sole, on the other
part, submit themselves to the award of ,7. A^., and after C. takes
J. S. to husband, and after the arbitrator, before any notice ct
the marriage, makes an award that B. and C. shall pay 30/. to
A,, yet this shall not bind J. S. and C. his wife, nor A ; for the
submission by the marriage of C. is revoked as to B. also, an<l
this without any notice.

A m^ii

4 Co. 60.

Forse and
Hembling.
[Cotter V.
Layer, 2 P.
Wms.624.S.P,
2 Bhick. Com.
499. S. P. It
is so totally
revoked, that
it will not

George v.
Aiubl. 627.

Roll. Abr. 532.
Ruled on de-
murrer

betweenWhite
and Gifford.
j'jCharnley v.
vVinstanley,
5 East, 266.||

( E) f Fife's Acts, S^^c. where revoked by Marriage,

707

A. entered into a bond with his intended wife, conditioned to Salk. 325.

leave her at his death 1000/. if she survived him, Sfc. ; A. died Gage v. Acton.

intestate, and the wife took out administration to him ; in an ac- p ?^u* ^^^'

tion of debt brought against her as administratrix for rent incur- g. C. Holt

red due in the Ufe-time of her husband, she pleaded this bond, 509. Freeman,

and that 250^. only came to her hands, which she retains in part ^^2. 515. Co-

of satisfaction, and that she had not assets ultra ,• on demurrer ^^"^' ^J.'c

the whole court agreed, that contracts and debts in prasenti, also Lil. Ent. 214.

such as were contingent, and might happen during the coverture, 2 Venn. 480.

were extinguished by the marriage : but two judges in this Chan.Pre.237.

case, against Holt C. J. held, that this bond with a condition, gaidllfat' '^

was like a promise or covenant before marriage to leave the writ of error

wife so much, (which were agreed to be good,) and being to be was brought io

paid infuturo, was not extinguished by the marriage, but was in ^^^ ^^u^^^l

custodia legis, to preserve a right, and answer the intention of the butlhe 'plain-*

parties; bnt Holt held, that the bond and condition were dis- tiff in error

tinct, and that upon the execution of the bond, there was a debt perceiving the

in prcesenti, which was extinguished by the marriage : but the ^^^"'l inclined
jri^uj-i i. to affirm the

defendant had judgment. ^ judgment, did

not proceed. Note. By the cases on this head, in which there are various opinions, the better
opinion seems to be that such a bond is extinguished; lJ5Term R. .581. contra ;^ but if the
husband enter into a bond with a stranger, conditioned to leave the wife so much, it will be
good. 2 Vern. 290. Also a promise or covenant with the intended wife is good, not being a
debt in prcBsenti. Jenk. R. 166. 221. Roll. Abr. 343. 2 Roll. Abr. 407. Hob. 216. Hutt.
17,18. Noy,26. Cro.Jac. 571. Palm. 99. 2 Roll. R. 162. 3 Sid. 58. Lit.R. 52. Hetl.122.
Vide infra.

A man enters into a bond to his
to leave her 1000/.; he mortgages
leaving personal assets to discharge the bond : it
in equity, that though the bond was void by law, being ex-
tinguished by the marriage, yet it should be made good in
equity; and that the wife might redeem and hold the land till
she was satisfied her debt.

Chan. 237. [2 P. Wms. 243, 2 Atk. 97. It is now settled that such a bond may be enforced
at law against the heirs of the husband. Milbourn v. Ewart, 5 Term R. 381. and Hayes ex dim.
Foord V. Foord there cited.]

II Marriage does not release a demand which the woman may Baker v. Hall,
have on her husband in a representative character. Thus where ^^ ^^^' ^^^'
a woman residuary legatee married the sole executor, her share
of the residue was held to survive to her.

Where an action was brought against a widow, the executrix Marriott v.
of her husband, by a bond creditor of the husband, and the i^?i'"'p°",'
widow pleaded that, prior to the marriage, her husband gave a
bond to two trustees, conditioned to leave to her at his death if
she survived him 400/., that he appointed her executrix, and that
the debt was due, and then ple7ie administravit except 5/., which
she claimed to retain in part satisfaction of her bond debt : the
plaintiff demurred, on the ground that the bond was made to the
trustees, and not to the wife ; but the court overruled the
demurrer, observing, that if the money had been made payable
to the trustees it would have been fatal to the plea, though in
that case she might have paid the money to the trustees and have

Z z 2 insiste 1

intended wife, conditioned 2 Vern. 480.

his estate, and dies, not How far equity
1 1 will support

was decreed 5^,(1 contracts,
vide Clian. Ca.
21.117.

1 Vern. 408.

2 Vent. 343.
Prcced. in

708

BARON AND FEME,

Thompson v.

Thompson,

9 Price R. 464.

Sed vide Loane

V. Casey, 2 Black. 965.

insisted upon the payment, or she might have paid it out of her
own funds and retained assets pro tanto, but that since by the
condition of the bond payment was to be made to the wido-j:,
she was entitled to retain, and whether the words were to leave
or to pay to the widow would make no difference.

It has been held, however, that a widow and administratrix
cannot retain for an annuity secured by her husband's covenanl
with trustees, and payable to her.

Loomes v.
Stothard,
] Sim. & Stu.
458.

For this vide
2 Chan. R. 79.
81. 2 Vern.l7.
[2 Freem. 29.
Glib. Lex
Praetor. 267.
267. 2 P.
Wms. 535,
536. Id. 358.
674. Mos.177.
2 Ves. 264.
2 Bro. Chan.
R.545. Fonbl.
Notes on Eq.
Tr. 98, 99.]

Vern. 408.
Hunt and
Matthews.
[Nevvstead v.
Searles, 1 Atk.
265. Doe V.
Routledge,
Cowp. 711.]
iJDe Manne-
ville v.Cromp-
ton, 1 Ves. &
Bea. 354.11

If the husband devise his real estate to his wife, and his
personalty be insufficient for payment of his debts, the widow
may retain the amount of a sum secured to her by bond or
covenant, out of the produce of the estate, as against the other
specialty creditors. ||

Also equity will set aside the intended wife's contracts, thoug
legally executed, when they appear to have been entered in
with an intent to deceive and cheat the husband, and are in d
rogation of the rights of marriage : as where a widow made
deed of settlement of her estate, and married a second husband
who was not privy to such settlement ; and it appearing to the
court that it was in confidence of her havinsr such estate that the
husband married her, the court set aside the deed as fraudulent:
so where the intended wife, the day before her marriage, entered
privately into a recognizance to her brother, and it was decreed
to be delivered up.

But where a widow, before her marriage with a second hus-
band, assigned over the greatest part of her estate to trustees,
in trust for children by her former husband ; though it was
insisted that this was without the privity of the husband, and
done with a design to cheat him, yet the court thought that
a widow might thus provide for her children before she put her-
self under the power of a husband ; and it being proved that'
8000Z. was thus settled, and that the husband had suppressed
the deed, he was decreed to pay the whole money, without
directing any account.

(F) Where the Husband shall be liable to the WifeV
Debts contracted before Marriage ; and herein of p.
Wife that is Executrix or Administratrix. '

20 H. 6. 22. b. ^HE husband is liable to the wife's debts contracted before
Moor, 468. marriage, whether he had any portion with her or not; ami

this the law presumes reasonable, because by the marriage tht
husband acquires an absolute interest in the personal estate of th'
wife, and hath the receipt of the rents and profits of her rea;
estate during coverture ; and whatever accrues to her by he-
labour, or otherwise, during the coverture, belongs to the hus-
band ; so that in favour of creditors, and that no person's ixc

shouM

Roll. Abr. 352
3 Mod. 186.

(F) Where the Husband shall be liable to the Wife's Debts, %c. 7OO

should prejudice another, the law makes the husband liable to
those debts with which he took her attached.

But if a feme sole, indebted, marries and dies, the husband 10 H. 6. 10.
shall not be charged ; for the debts must be recovered in the ^^' ??l?'?-
lifetime of the wife. ll\ R«"- A^r.

351.; ||and see
Jordan v. Foley, Sel. Chan, Ca. 19.||

II And if the husband dies before the debt is recovered, the Woodman v.
wife surviving is liable. || Chapman,

° " 1 Camp. 189.

So, though there be a judgment in debt against a feme sole, 3 Mod. isg.
and she marry and die, the baron shall not be charged there- Agreed per
with, for he is not liable to her debts before coverture, unless '^«'»'"» - j^"t
recovered in her lifetime. .tfltaghr

goods, but did not pay for them, and the ^oods came to lier husband*9 handn, and the cre-
ditors after her death brought a bill in equity against the husband, to which he demurred ; the
demurrer was over-ruled, my Lord Chancellor with earnestness saying, he would change the
law in that point. 1 Chan. Ca. 295. But Qu. For where a man married a woman trader, who
died, and at her death was indebted to several persons for wares which she had bought of
them, and which were by her in specie at the time of her death, and came to the hands of her
husband ; on a bill brought against him that he may either pay for those goods, or let the per-
son have them again, it was holden, that he may plead that he is neither executor nor admi-
nistrator to his wife, and therefore not liable to her debts, and that all her goods belong to
hhn by law. Abr. Ca. Eq. 60. [But Qu. A court of equity cannot make the husband liable
in respect of the fortune he may have had with the wife. Earl of Thomond v. Earl of Suffolk,
1 P. VVms. 461. Heard v. Stamford, 3 P. Wms. 410. Ca. temp. Talb. 173. S. C] \\Sed vide
Ball v. Smith, 2 Freem. 251. cont. And it is otherwise as to property of the- wife as adminis-
tratrix coming to the husband's hands, see in/'ra.H

If baron and feme are sued on the wife's bond, entered into Sid. 337. So if

by the feme before marriage, and judgment is had thereupon, husband and

and the wife dies before execution, yet the husband is liable : for ^ ,1 ^.^?°'
^1-1 1111111*^ vered in right

the judgment hath altered the debt. of the wife

and had judgment, the husband might sue out execution after the death of the wife. Cro. Car.
208. Sid. 337. Salk. 1 16. pi. 7. Carth. 415. 2 Ld. Raym. 1050.

If there be judgment in debt upon a bond against a feme Carth. so.

sole, and she marry, and after upon two scire facias against the ^'^"^" ^""

baron and feme, and nihils returned, judgment be thereupon had jgg g q lj.

against the baron and feme, and so it rest for a year and a day, Raym. 1050.

and then the wife dies, a scire facias will lie against the baron. Com. R. 32.

to shew cause why execution should not go against him upon | » p l

the first judgment, for the award of execution was absolute against 415 "g. q^

the baron and feme, and so it became his debt, whereas before cited, and

it was only the debt of the wife. allowed to be

•^ law.

If a man marries an administratrix to a former husband, who Cro. Car. 603.
in her widowhood wasted the assets of her intestate, the husband King v. Hilton,
is liable to the debts of the intestate, during the life of the wife; J°aj^'"f ^^J.
and this shall be deemed a devastavit in him. tutors and

Administrators, and Roll. Abr. 351. Moor, 761. Cro. Car. 208. 227.458. Sid. 337. Nole.~
That in equity the creditors of tlvc first husband may follow the assets in the hands of a second
husband, although the wife be dead. Chan. Ca. 80. Vern.309. 2 Vern. 61. 1 18. A married
an administratrix to her former husband, to a share of whose personal estate the plaintiff was
entitled, the administratrix was likewise entitled to a third ; and before her second marriage
IkuI wasted great part of the estate, and then died ; and a bill was brought against her husband
to have an account of the estate, and a satisfaction for his share; an account was decreed to

Z z 3 l)«

710

BARON AND FEME.

In re M'Wil-
Hams, 1 Scho
&Lef. 172.

Clarke v.
Cobley, 2 Cox
R. 173.

be taken of what estate had come to the hands of the administratrix before her second mar
riage, and the plaintiff to have satisfaction against the defendant absolutely for so much as came
to his or his wife's hands after marriage, and for what came to her hands before her second
marriage, to have satisfaction against the defendant so far as he had any estate of his wife's
1 Abr. Ca. Eq. 60, 61.

II If an executrix marry, and she and her husband, on being
sued by a creditor in equity, admit assets, the assets become a
debt due from the husband, and may be proved under a com
mission of bankrupt against him.

A woman on marriage was indebted on two promissory notes,
and the husband gave his bond to the creditor, who gave up
the notes. On the bond being put in suit, the husband pleaded
infancy. The Court of Chancery ordered the notes to be re-
turned to the plaintiff, and ordered the defendant not to plead;
the statute of limitations if sued upon them, or any plea which hd
could not have pleaded at the time of giving the bond ; but the
court would not order the immediate payment of the money. I

Where an action is brought for a cause of action arising be-
fore the marriage, the husband and wife must be joined as de-
fendants; but where the wife rented a house under a parol
HallTTBro. & tenancy, at a rent payable half-yearly, and she married in the
Bing. 50. middle of a half-year, having previously given notice to quit at

the end of the half-year, it was held that the husband could not
be sued in assuvipsit for her use and occupation before the
marriage. |]

(G) Where she alone f|or jointly with her HusbandK
shall be punished for a Criminal Offence ; and where
the Husband siiall be answerable for what she does
in a Civil Action.

Mitcheson v.
Hewson,
7 Terra R.348.
Richardson v,

Kelw. 31.
S. P. C. 26

A FEME covert is so much favoured in respect of that power
and authority which her husband hath over her, that she
V^ <^k ^^^^^^ ^^^ suffer any punishment in committing a bare theft in

40i."|IFitz. company with, or by coercion of, her husband.
Corone, 160. 199.|| Hawk. P.C. 2. She shall not be deemed accessory to a felony for receiv-
ing her husband who has been guilty of it, as her husband shall be for receiving her. 3 Inst.
108. H. P. C. 65. 2 Hawk. 451. — [Nor a principal, though the husband's offence be treason \
for she is sub poiestate viri, and bound to receive him. Neither is she affected by receiving
jointly with her husband any other offender. 1 Hale, 48. For she cannot be admitted as a
witness to discover, even collaterally, her husband's guilt. Brownl. 47. Dalt. 540. 1 Hale,
301. O. B. 1785. 1 Hawk. P. C. 4. note.] ||See Phillipps on Evid. 1. 74. In cases of personal
violence to the wife, she may be a witness against her husband. Lord Audley's Ca. 1 Sta. Tri-!
393. ; and see 1 Ry. & Moo. Ca.552.||

Kelw. 31. [This exemption extends to burglary, and seemingly to rob-j

1 H^^°k I^ C ^^^y^ ^^ ^" offence of a nature certainly not more heinous. Thej
reason of this rule is said to be " because the wife cannot knows
" what property her husband may claim in the goods taken .'*i
If this be the true principle, the cases of burglary and robbery
are in some measure distinguishable, for in burglary the ab-
sence or presence of the party is immaterial ; but in robbery pre-
sence is an essential ingredient to the crime, and affords to the

wife

4. note. iJThe
reason above
given in
10 Mod. 63. is
only stated ar-
guendo by
counsel, and

(G) Where Wife alone, or with her Husbandj punishable j ^c. 71 1

wife an opportunity of judging in what sort of right the goods seems too nar-
are taken.] row. Black-

stone states the
wife's exemption to extend to all civil offences against the laws of society, and treats her
responsibility in case of murder, treason, and the like, as exceptions in respect of their
heinousness, as mala in se, and so also does Lord Hale. But although Blackstone says that
this doctrine is as old as the laws of the West Saxons, it does not seem to have been settled in
early times; for Bracton, lib. iii. c. 32, § 9, 10 , lays down the contrary; and so does the author
of Fleia, lib. i. c. 38., — that husband and wife, in such case, are both guilty, and shall both
suffer punishment; and Lord Hale says, " and so it hath been practised by some judges, but
" the practice has obtained that if the husband and wife commit burglary and larceny together,
" the wife shall be acquitted and the husband only convicted ;" and with this agrees the old
book 2E.5., Corone 160.; and this being the modern practice, and in favorem mtce, is fittest
to be followed. I Hawk. P. C. 4. note (7). Black. Com. 4. 28.; and see note of the learned
editor of the 16th edition, as to the origin of the exemption, and its not applying to mur-
ders. Sec. or misdemeanors. And Hale P. C. 45.1|

II On an indictment for disposing of forged notes it was ruled Rex v. Atkin
that a woman was protected by being the wife of a man indicted, ^^n, Russell
who disposed of them in her presence, and with whom she was °" "' ^°'
indicted.

But where a woman was indicted for falsely swearing herself Rex v. Dicks,
to be next of kin, and procuring administration, it appears to 1 78 1- Russell
have been held by all the judges that she was guilty of the ' *

offence, though her husband was present when she took the
oalh.

And so where a wife, by her husband's order and procuration, Rex v. Morris,
but in his absence, knowingly uttered a forged order and certi- ^^- ^"^If^ ^'
ficate for payment of prize-money, it was held by all the judges, q^\^q ^'
except Dumpier abseiitem, that the presumption of coercion at the
time of uttering did not arise, as the husband v.'as absent, and
that the wife was properly convicted of the uttering, and the
husband of the procuring ; and in a similar case Thompson Baron
thus laid down the law on the subject : The law out of tender- Rex v. Hughes,
ness to the wife, if a felony be committed in the presence of her if'^' R"^*-°"
husband, raises a presumption ^n'wayaaV, sxnd prima facie only,
as is clearly laid down by Lord Hale (H. P. C. 516.), that it
was done under his coercion ; but it is absolutely necessary
that the husband should in such case be actually present, and
taking a part in the transaction. The coercion must be at the
time of the act done : but when the crime has been completed in
his absence, no subsequent act of his (although it might possibly
make him accessory to the felony of the wife) can be referred to
what was done in his absence.

Where the husband and wife were found guilty by the jury, Archer's case,
on a joint charge of receiving stolen goods, and it was not left \} )\' ^^°°'
to the jury to say whether the wife received the goods in the
absence of the husband, the judges held that the conviction
could not be supported. ||

But if she commit a theft of her own voluntary act (a), or by H. P.C. 65.
the bare command of her husband, or be guilty of treason, mur- Dnlt. 104.
der, or robbery, in company with, or by coercion of her husband, ^'jt^ CorVn^^*
she is punishable as much as if she were sole. 4 Black. Coin.

2.0. 1 99. Or receive stolen goods of her own separate act without the privity of her husband ;
or if he, knowing thereof, leave the house and forsake her company, she alone shall be guilty

Zz 4-

712 BARON AND FEME.

as accessoi^. 22 Ass. 40. Dalt. 157.; for the coercion which is supposed to be conveyed by
tlio command or presence of the husband is only a presumption of law, and like other pre-
sumptions may be repelled. 1 Hale, 516. And though the husband be an agent in the trans-
action, yet if he be ignorantly so by the artifice of the wife, she alone is punishable. Ham-
mond's case. Leach's Cas. 554.] (a) But she is not guilty of felony in stealing her husband's
goods*, because a husband and wife are considered but as one person in law, and the husband,
by endowing his wife at the marriage with all his worldly goods, gives her a kind of interest m
them, for which cause even a stranger cannot commit larceny in taking the goods of the hus-
band by the delivery of the wife, as he may by taking away the wife by force against her will.
Hawk. P. C. 141. ]|l3ut the stranger is liable in trespass. 1 Hate, 514, East P. C. 558.
And if the wife deliver the goods to B. her adulterer, it will be felony in him. Dalt. C. 104.
pi. 268, 269.; and see Harrison's case, 1 Leach, 47.j|

[* It was the same in the Roman law, which gave to the husband in such a case thej
actio rerum amotanim against the wife, but allowed not the actio furti to be institutedj
against her.] i

Rex V. Squire Ijln a singular case of murder, however, the wife was held not'
ctUx. 1799. to be jointly responsible with the husband. Charles Squire and
Iluss.on Cri. j^jj. ^jf^ ^^j.^ jndicted for the murder of the husband's appren-
tice boy, and the surgeon gave evidence that, on opening the
boy, he found that the boy died from want of proper nourish-
ment, and not of wounds, though he had been cruelly treated,
both by the husband and wife ; upon which Lavoretice J. held,
that as the wife was servant of the husband, it was not her duty
to provide the boy with food, though if the husband had given
her food for the boy, and she had withholden it, she would have
been guilty; and that, though mforo conscientics she was equally
guilty with her husband, yet in law she could not be said to
be guilty of not providing the apprentice with sufficient food.||
9 Co. 71. A feme covert generally shall answer as much as if she were

Hawk. P. C. 4, sole, for any offence not capital against the common law or
Vtde ^''^'■» statute(a) ; and if it be of such a nature that it may be committed
Nov, 105. '^y her alone, without the concurrence of the husband, she may

Savil, 25. Cro. be punished for it without the husband, by way of indictment,
Jac. 482, which being a proceeding grounded merely on the breach of the

)}^'^'u^\ law, the husband shall not be included in it for any offence to
1 hat ihe hus- i • i • • •

band is not which he is no way privy.

liable to pay the forfeiture recovered on an indictment against the wife ; and therefore quccre^
whether a conviction of a feme covert upon an indictment, can be pleaded to an information
against her and her husband. Hawk. P. C. 27. («) She cannot be indicted for barratry. Roll.
R. 59. But Qm. Whether she may be indicted for forestalling? Qm. Sid. 410. 2 Keb. 654<
may be indicted for a scold, and judgment against her to be ducked ; but scolding once o(
twice is not sufficient to constitute this offence, which lies in the frequent repetition of it to
the disturbance of the neighbourhood. 6 Mod. 215. 259. A feme covert may be guilty of a
forcible entry by entering in person, and may be imprisoned for it. Hawk. P. C. 285. Where
the husband may be proceeded against for the recusancy of his wife. Vide Hawk. P. C. 25.
Qm. If not alone? Hob. 96. She may be indicted together with her husband for keeping a
bawdy-house. Hawk. P. C. 2. Ifawontan bring a malicious appeal for the death of hei^
husband, known by her to be alive, she may be imprisoned for her false appeal till she make
fine to the king, and her husband shall go at large. 8 H. 4. 17. Fitz Coron. 75. Bro. Impri-'
sonment, 100. [She may be convicted alone under 9 G. 2. c. 23., for selling gin. 2 Stra, 1 120.
She may be committed for disobeying an order of bastardy. 5 Burr. 1679.]

Rexv.Hurrell, ||lf a feme covert is indicted for stealing out of a lodging room
1 Ry. & Moo. on 3 & 4 W. & M. c. 9. ^ 5. the room may be described as let
~ ^* to hcr^ if that is the fact, and the husband does not cohabit. 1|

Skin. 548. A feme covert lent 20/., to be paid at 205. by the week, and

pKi7. Barnet \s, Qd. interest; the borrower paid the interest, which amounted

(H) How far Husband bound by her Contracts for Necessaries. 713

to 305., which the wife exacted and received ; and this appearing and Tomp-
on evidence, in an action brought by the husband for the money, '''°^'
Holt C. J., ruled it to be an usurious contract by the husband,
sufficient to discharge and avoid the obhgation civiliteVi though
not sufficient to charge the husband crimijialiter.

If the wife incur the forfeiture of a penal statute, the husband H^eHawk.
may be made a party to an action or information for the same, ^•^- ^- ^".d
as he may be generally to any suit for a cause of action given ^^^ authonties
by his wife, and shall be liable to answer what shall be recovered
thereon.

If a feme covert, pretending herself to be sole, marries a s|j ^^^ ^^^
second husband, he shall have no action against the first, 247. Shall be*
because this action is founded upon the communication and answerable for

contract of the wife (Z»), which will not bind the husband; besides a trespass done
^1 • . !• 1 ^ by her, or for

this IS felony. slanderous

words spoken by her. Vide 2 H. 6. C2. Kelw. 61. Roll. Abr. 251. Leon. 122. Cro. Car. 376.
{b) Where the husband shall be bound by some of her acts, as in selling goods, receiving money
for him, i;zV/e the next head, and 2 Inst. 713. Sid. 114. Cro.Eliz. 245. 3 Leon. 267. Cham
Ca. 38. 6 Mod. 162. Comb. 4 50. Jenk. R. 4. 23. Ld. Raym. 224.

Several goods were devised to A^'s wife for life, and after her Vern. Hs.
decease to J. S. in this case, though A. and his wife were parted,
and there had been great suits for alimony, and she, during the
separation, had wasted the goods, yet the Lord Keeper thought it
reasonable that the husband should be charged for this conversion
of the wife's, A.'s title being paramount to the feme's.

(H) Of her Contracts for Necessaries, and how far the
Husband is bound by such Contracts.

T T is clear that a husband is obliged to maintain his wife, and 1 1 H, 6. so.

may bylaw be compelled to find her necessaries, as meat, j^it^. Debt,4i,
drink, clothes, physic, Sf'c- suitable to the husband's degree, AlTe" lL
estate, or circumstances : it seems also settled that the wife is R. 307, Hutt.
not to be her own carver, and that she hath not an absolute 105. Jenk. R.
power of binding the husband by any contract of her's, though ^- ^^"' ^^'
for necessaries, without his assent, precedent or subsequent: the j^g' jj^' » ' '
law therefore in these cases, as it seems established by usage and Mod. 128.
practice, is to leave it to the jury to find whether the husband 2 Vent. 1 55.
consented or not; and though no express consent or agreement Keb.69.80.87
of his be proved, yet if it appears that she cohabited with her Lev^" '5 '
husband and bought necessaries (a) for hersell^ children, or Salk. I'le. lis.
family, the husband shall be chargeable, and the jury may find, pi. 10. 2 Ld.
on their oaths, that they came to the husband's use, he being by ^^'"■, ^°^^'
law obliged to provide for them : also if she cohabits with her g show 285
husband, and is ever so lewd, he shall be liable for her neces- Skin. 348.
saries, for he took her for better for worse; so if he runs away p'. i7. [iTerm
from her, or turns her away, or forces her by cruelty or ill usage j-; ^' * ^*
to go away from him ; but if he allows her a separate main- g^g q^ Bank,
tenance (Z>), or prohibits (c) particular persons from trusting her, Laws, 32. 36.
he shall not be liable during the time that he pays such separate See 2 Bro.
maintenance, nor for necessaries taken up of those persons than.R. 377.

particularly

714 BARON AND FEME.

Fontbl. Notes particularly prohibited; for in these cases no consent, but ratjj,

*"" ( ^'R ^^^ contrary, appears ; but a general warning or notice in the

the contract ill Gazette^ or other newspaper, not to trust her, is not a sufficient

such case will prohibition. Also the jury are to determine as to the wife's

not avail, if necessit}^, the husband's degree and circumstances, and the value

made under ^^ jj^g things sold and delivered, and give a verdict, and assess
illegal circum- , ^ i- i ' & '

stances. damages accordmgly.

2 Stra. 1122. (fi) Or if she goes away with an adulterer, whether the tradesman have notice
of it or not. 1 Stra. 647. 706. 2 Stra. 875. 1 Salk. 119. See 2 Black. R. 1079. (c) But if
he turns away his wife causelessly, he will be liable, notwithstanding a particular prohibition.
2 Stra. 1214. — Where the husband claimeth to be discharged from liability to his wife's debts,
in respect of her having a separate maintenance, it seemeth that it must be a provision pro-
ceeding from himself, and not from a third person. 4 Burr. 2177. ^Sed vide Liddlow v. Wilmot,
2 Stark. R. 86. cont.^ The modern cases with respect to a separate maintenance have gone
very far : for it hath been lately adjudged, that the wife may in such case contract and be
sued as a feme sole ; that she continues liable, though she alien or exhaust the whole of the
distinct fund; that the husband is not liable even for necessaries; and that the second husband
is accountable for debts contracted during the state of separation from a former. Corbet v.
Poelmitz, 1 Term R. 5.] jjRingstead v. Lady Lanesborough, and Barwell v. Brooks, Cook's
B. L. 28. 31. in opposition to two former cases. 2 Black. 1074. Id. 1195. But the old law
on the subject is now re-established ; and it is settled that a feme covert, though separated
from her husband, and having a separate maintenance, cannot be sued for necessaries, although
the husband, by reason of the maintenance allowed, be discharged from responsibility.
Marshall v. Rutton, 8 Term R. 547. And it is the same although the husband be domiciled
and resident in a foreign country. Marsh v. Hutchinson, 2 Bos. & Pull. 226. Boggett v,
Friar, 11 East, 301. Farrer v. Granard, 1 New R. «0. Unless in case of the wife of an alien
who has never been in this country. Kay v. Duchess de Pienne, 3 Camp. 123. De Gaillon v,
L'Aigle, 1 Bos. & Pull. 5 57. And so although the wife be divorced a mensa et thoro, still, thd
relation of marriage subsisting, she cannot be sued as a feme sole. Lewis v. Lee, 5 Barn. & C,
291. Hookham v. Chambers, 3 Bro. & Bing. 92. Fairthorne v, Blaquiere, 6 Maule & S. 73
EUah v. Leigh, 5 Term R. 679. But if the husband be banished or abjure the realm for life
she may be treated as a feme sole. Belknap's case, Weyland's case, Co. Litt. 133. Wilmot'j
case. Moor R. 851. Newsome v. Bowyer, 3 P. Wms. 37. Sparrow y. Carruthers, cited
2 Black. R. 1197. Or if he be transported for years. Carroll v. Blencow, 4 Esp. Ca. 27. Bui
qucBre^i Whether she can be so treated after the term of transportation is expired, and the bus
band not returned. 2 Bos. & Pull. 233. Though a woman has held herself out as a feme sole,
she is not estopped from setting up coverture as a defence. Davenport v. Nelson, 4 Camp
26. ; and see 3 Camp. 393. jj

But the learning on this head will be best explained by insert-
ing the celebrated case of Scot and Manhy, with my Lord Chiel
Baron Hale's argument at length.
Manby and A woman departs from her husband without his consent, and

Scot, adjudged duniig |ier absence the husband prohibits several persons, and
in the bxc e- ^jp^^Q^™ ^|^g j-g^^. j g^ ^q trust her ; and after, she makes a request
quer-chamber » . . , , i i i i i c i •

on a special to cohabit again with her husband, and he retuseth to receivcj

verdict, by her ; and yet J. S. sells to her silk and velvet to the value of 40/.i
eight judges ; which is found suitable to the degree of her husband : the hus-
agamst three ^ j ^j^^j^ ^^^ ^^ charged,
but Atkins, o

one of the eight, agreed with the three if there had been no special prohibition j and Bridg-^
jiianC J. one of the eight, held, that admitting otherwise, viz. that the husband was liable, yetj
he might make such special prohibition to a particular person, and it would excuse him. 1 Sid..
109, no, &c. and 1 Mod. 128. 1 Lev. 4, 5. 1 Keb. 69. 80. &c. S. C.

Lord Chief I. I will say something of the nature of contracts.

Baron Hale s g. I will apply it to our case, in consideration of tlie verdict,

argument in v • f i

the Exche- ^^ *' ^^ tound.

quer-chamber, 3. I will shew in what particulars we all agree, and where we

in the case of differ, and so state the question.

Manby v.Scot. 4,.

(H) How far Husband bound by her Contracts for Necessaries. 715

4. I will speak to the question as it shall be so stated.

1. A contract is the consent of two or more, whereby to brino-
in an obligation of one to the other; and the parts requisite
to such a contract, are 1st, parties; 2dly, consent; 3dly, an
obligation.

1st, It is requisite that the parties be not disabled to contract;
and as to that, in law some are disabled to contract quoad hoc
and ex paiie, as an infant, non compos, ^c, and some have an ab-
solute disability; as a feme covert, who can no way in our law
contract.

2dly, As to the consent, that must be either express, or im-
plied; express must be either precedent, concomitant, or sub-
sequent; implied is raised by law ; as where a man is made bailiff,
steward, or housekeeper, a general authority is given him ; when
goods come to a man's nse, he having had notice of the contract ;
it is an assent the law will imply, and make the contract oblige
him ; and if either of these had been found in this special ver-
dict, it had been well; for then there had been fact enough for
the law to have made construction upon. There is, besides all
this, evidence of a consent in fact, which must induce a jury, if
there be no circumstances against it. As if I send a servant
always with ready money, and he buys upon trust, here is no
evidence ; but if I usually send him upon trust, and where he
takes up goods I stand to his bargain, and pay for them, this is
evidence that I would have all the world trust him ; and this a
jury may apply to make a consent to any particular contract; but
then thev must find the assent in fact ; for that which is the evi-
dence to them we cannot judge upon.

Sdly, As to the obligation, it is necessary that this be upon the
party consenting. 1 know that in some cases the obligation of a
contract may be transferred by way of concomitancy ; as to the
husband, it is carried with the chattels and person of the wife ;
and it lies upon the heir and executor when they have assets ; but
for a man to be originally bound by a contract, it is necessary
that there be his consent; and the consent of no other person
will serve.

2. To consider what is in the verdict, and apply what has
been said to it : I find in it no assent of the husband's found, nor
any authority he gave his wife, but only matter of evidence. I
confess, that when a wife, though not particularly appointed,
contracts for necessaries for herself, her family, her husband, or
her children, this is great evidence to a jury to make them find
the assent of the husband; for it cannot be reasonably thought
that any man would be so barbarous as to deny his assent to have
the necessities of his family supplied; and so it may be believed
and found he did assent ; but this only in case of cohabitation ;
for it may be well imagined, that when a wife leaves her husband,
that he may refuse to sup})ly her ; and so in the verdict, this
matter of evidence is answered, by finding, that she departed from
Jiim : but then there is an answer on the other side, that she after-
wards, and before this contract, desired to cohabit with him ;

716 BARON AND FEME.

to this it is replied again, with aflat bar to any evidence tliatcaii
be given of an assent, viz. that the husband did expressly pro
hibit those tradesmen to trust her: the judges, in their direction!;
to a jury, direct them to be guided by such evidence of an assen ;
when nothing appears to the contrary ; because it would be very
hard in point of proof to shew express evidence of assent to every
particular; but when there is an express prohibition or denial ol"
assent, this takes off all the circumstances of evidence on the
other side.

3. I am to shew in what points we all agree, and where we
differ.

1st, We all agi'ee that it is not the contract of the wife's to
bind her ; for in our law she hath no will, nor power to bind her-
self; the civil law, as it allows her a property distinct from the
husband's, so it gives her power to bind herself by contract.

2dly, It is agreed on all hands the wife ought to be main-
tained ; the civil law, though it allows the wife a separate pro-
perty, yet the husband ought to maintain her out of her dower :
it is more necessary for the common law that takes away all
property from her to make provision for her subsistence, else
that which we pretend to be the most reasonable and provident
law in the world, would be the most barbarous ; but in this we
differ. It is said by those who argue that the husband should
be charged, that she may be maintained by a power the law gives
her to charge her husband by way of contract, which is altogethe;
denied by us.

3dly, We all agree that when the wife contracts for the neces
saries of her husband, children, or family, that this shall no
charge him by any inherent power in the wife, but by a rea
sonable and implicit assent, which must be found by a jury, bu
we differ in the charging him ; when she contracts for the supph
of her own necessities, we say it is not by a power she has, bu
there must be his consent, either express or implied. Secondly
We confess, that in case of cohabitation, there is great evidence
of his assent, till the contrary appears ; but it is not so binding as
will amount to a presumption. Thirdly, Therefore we say it must
be found by the jury. Fourthly, That it is countermandable by
prohibition, where it is said on the other side, and must be main-
tained, else they can make nothing of the case, that there is in the
wife, upon the intermarriage, an original, inherent, primogenial,
and uncountermandable power to charge the husband for her
necessities, which the husband can no ways repeal, though there
be no cohabitation or consent, but an express prohibition, and
this is the true state of the question betwixt us ; if there be such
a power in the wife or no, independent upon any consent of the
husband's. I shall consider,

1st, If there be such a power during cohabitation ? 2dly,
for necessaries ? and here I shall make a second question, If
there be such a finding of necessaries as is requisite in a verdict?
3dly, If the departure make nothing in the case ? 4thly, Ad-
mitting all this, whether it be countermandable quoad one man ?

1st. I

411

( H ) How far Husband bound by her Contracts for Necessaries. 7 1 7

1st, I shall hold there is no such power in the wife; my rea-
sons are,

1st, By the law of God, of nature, of reason, and by the com-
mon law, the will of the wife is subject to the will of the husband;
and therefore an indictment for being a joint-receiver with her
husband was holden ill ; but if the law were with those who
argue on the other side, this would be inverted, and the will of
the husband would be subject to the will of the wife.

2dly, Because no man can be originally bound in a contract,
but by his own consent.

3dly, To prove the law on their side lies upon them, which
they have not, nor any ways can do, (there being but one sem-
blance of an authority they can allege, which is 11 H. 6., which
is the opinion of Judge Ma?ti7i, and must be intended by way
of evidence ; ) but they say, they prove it by reason and incon-
venience.

1. I answer, Argumentum ah inconvenienti will not change or
alter the law when it appears to be so ; but it is only to prove
and interpret the law when we are in doubt whether it be so
or no.

Sdl}^, I answer, The inconvenience of the other side out-
weighs, and is far greater, for it will bring into the law a mani-
fold incertainty.

1. What things are necessary, what kind of necessity, and
when and how often this necessity may happen ; as if the hus-
band should give the wife clothes, and she give them away the
next day, she is in as much necessity the next day as she was
before, and quicquid necessitas cogit dehettir.

2dly, There would be great uncertainty which way she should
supply her necessities; as this way, 1. Of taking up goods, and
if she can find no credit with the mercer, but has the usurer for
her friend, then the law sure that provides against her necessities
will give her leave to take up money ; and if that fails, it is rea-
sonable that she should sell goods ; for the two other ways fail-
ing, the law will not let her perish ; if there were no goods, then
it were as reasonable she might receive rents, which would be
against Sir Paul Tracey and Dutton^?, case, Cro. Jac. 621. ; and if
there were none such, she might raise money upon the demise of
the land ; if the law will give way to her necessities in the first
case, it must yield in all the rest, for the case may else be so that
the provision of law would be defective : but I hold, that in none
of these cases the wife can provide for herself; but say, there
must be a trust somewhere ; as a father is bound by the law of
nature to provide for his son, and the son is bound to provide
for the father, but the law will not give the one leave to oblige
the other by way of contract; because the law supposes that
they will not be so unnatural, and intrusts them with it, viz. be-
fore the 43 Eliz. for the poor. If this trust must be some-
where, the husband knows best how to manage affairs, and so
is fitter to be intrusted by the law than anybody else : I add, that

although

718 BARON AND FEME.

although the law will not presume so much ill as that a husband
should not provide for his wife's necessities, yet there is a severe
obligation on him, not only to supply her in case of exigencies
and extreme necessity but according to conveniency ; but the law
has not made her her own judge, but provided her a judicature
sufficient to reform the close-handedness of her husband : where
she is driven to an extreme necessity and want of subsistence, the
law has appointed a judge to compel the husband to supply her,
I mean the Chancellor ; for, upon a supplicavit he may be bound
to the peace, and bene et honeste tractare ; which I hold not to be
understood only that he must use her gently, and forbear beat-
ing her, but that he must supply her exigencies. Then, for her
conveniences, the law has appointed the bishops' courts. And
whereas it is said, that this is not the common law, I answer, that
they are jurisdictions appointed by the common law ; and though
their coercion and proceedings are after another law, yet their
derivation, as to their use here, was from the common law ; and
concerning the amplitude of their power, which is said not to be
able to administer a remedy sufficient for this disease, I Sciy, as
it is aided by the brachium scailare, the power of it falls as severely
upon them that disobey it m the common law can use when
men will not pay their debts; for they may excommunicate,
and upon that follows imprisonment, and a disability to sue any
action.

The second objection made on the other side, by comparing,
the case of a feme covert with the case of an infant ; but I answer,
an infant is disabled only quoad hoc, and may oblige himself for
necessaries; but here the wife would bind her husband also ; in the
case of an infant there is nobody intrusted by the law to provide
for him (for guardian in socage is only where there is land) im-
mediately, and therefore he must do it himself; whereas, the
husband is intrusted for the wife ; so the cases are not parallel.

3d]y, It is objected that it comes to the use of the husband; I
answer, it would then bind the husband in superfluities, which
may so come to his use; which how inconvenient, I leave any
man to judge.

4thly, It is objected, that the husband is bound by the wrongs
of his wife, and may be charged in trover and conversion upon
her act ; I say, that in case of a wrong she binds herself, for she
must be joined in the action, and so she will be more careful not
to subject herself, than when the husband is charged alone ; but
I hold, that in this case no trover and conversion lies ; for the
delivery of the party, knowing the fact, and intending asale and
contract, translates the property at the peril of him that delivers
them. If a man knows one to be an infant, and sells him goods,
it is at his peril ; for if they be not necessaries, he shall never
charge the infant for the conversion : and so of a feme-covert, if
there be no consent of the husband ; for it has been holden, that
what the wife eats or wears comes to the use of the husband, and
will maintain a conversion ; and if the law should not be taken
thus, we should let in a flood of inconveniences, which would

make

(FI) How far Husband hound hij her Contracts for Necessaries. 719

make all those disabilities the law has raised for the protection
of infants and feme-coverts, mere words and of no effect.

2dly, I shall lay no stress upon the imperfect finding of the
verdict, lest it might be said that that was the reason of the judg-
ment; but only name some particulars wherein it seems to be
imperfect. 1. They should have found what the stuffs were;
for it hath been adjudged, that velvets were not necessary for an
infant; they ought to have found the circumstances of the ne-
cessity ; as where manslaughter is committed se defendendo, or in
execution of an office ; they should have set forth of what kind
the necessity was, as there is a necessity of clothes, of meat, of
medicine, and of habitation ; they have found that these goods
were necessary and convenient for his degree, they should have
said also for his estate; for a high degree may have a low estate,
and then the wife cannot expect to be maintained according to
the height of her husband's degree ; but I lay no hold on these
defects in the verdict

3dly, Upon her departure all evidence of any obligation of the
husband to maintain her ceases ; it would else be very unreason-
able ; for whilst they are both in one house, the same provision
will serve for both. In case of a bailiff", if he goes away, no
contract of his will bind the master, though he had no express
discharge; and here we must presume some unreasonable cause
of her departure ; for a wife in no case ought to do it, and she
might have had alimony without any separation. Moor, 874.

4thly, Admitting all this, I hold that the prohibition here takes
away all presumption of any consent of the husband to the con-
tract, either express or implied ; and though the wife should be
allowed such a power to charge her husband as is affirmed on the
other side, yet it may be discharged as to one particular man, by
the prohibition and countermand of the husband; it would be a
very hard case else ; for she may make him liable to the greatest
enemy he had in the world. 12 E. 4. 18. The king may grant
to J. S. to be exempt of juries ; but if he grants it to a whole
county, hundred, or township, the grant is void ; and by this
prohibition of the husband here is no discharge of the whole
power, but only it is taken of those particular persons. If a
man enters into an obligation not to use his trade, it is against
law, and void ; but if it be not to set up his trade in such a street
or town, it is good.

Note : He added, that as to charging the husband by way of
evidence, which he had restrained to cohabitation, he said, the
law is the same where the husband departs from the wife; as
upon going beyond sea, ^r.

II In the case of Manbi^ v. Scot^ supra, the wife departed with- Harris v.
out the husband's consent (a) ; but i? the husband, without justifi- Morris,
able cause, turn her out of doors, he cannot avoid his liability for f^oWfji v,^'*
necessaries supplied to her, either by a general advertisement to \y^„^ dogg noj
tradesmen not to trust her, or by a particular notice to an indi- assent to the
vidual ; for when he turns her out. he sends her with credit for w'fe leaving
her reasonable expenses. ' tUP^Zi

720

BARON AND FEME,

it seems he cannot be made liable to her debts, although she may have left him in pursuance
of a deed previously made, by which they had agreed to separate. Hindley v. Marquis of
Westmeath, 6 Barn. & C. 200.; and see Westmeath v. Westraeatlij 1 Dow. P. Ca. N. Ser.

sEsp.Ca. 251. And if the wife's situation is rendered unsafe by his cruelty

and ill treatment, it is equivalent to turning her out of doors.

1 Esp. Ca. 441.

Boulton v
Prentice,

1 Sel. N.P. 264

Aldis v.
Chapman,
1 Selw. N. P.
363.; and see
■2. Stark. 87.

Horwoodv.

Heffer,

5 Taunt. 420.

Lord Ellenborougk decided in one case, that if a man, by
bringing another woman under his roof, rendered it unfit for his
wife's residence, he was liable for necessaries on her leaving
him.

But it was afterwards held by the Court of Common Pleas, that
no ill treatment short of personal violence, or such conduct as
to induce a fear of it, would entitle a stranger to sue the hus-
band for necessaries furnished the wife on her leaving him.
Houleston v ^^ j"*^ decide that the wife had reasonable ground to

Smith, 3 Bin^. apprehend personal violence, the husband is liable.
27., where the case in 3 Taunt. 420. was disapproved by the court. If the wife were justified
in leaving him, he cannot determine his liability by merely requesting her to return. Emery
V. Emery, 1 Young & J. 501 . If the wife lives separate, it lies on the tradesman suing to shew
that the separation was such as to justify her binding her husband for necessaries. Main-
waring V. Leskel, 1 Moo. & M. 18.

i^v-f'^^^ ^' ^f ^^^ y/i^Qi living separate from her husband, without any

2 Stark r 86 • ^^^^^ "^ ^^^' own, has funds at her command, the question is,
andsee ciiV- ' whether they are adequate to her support; if they Are, (whether
derived from the husband or not,) that circumstance repels
all idea of an implied credit from the husband, and he is not
responsible for her debts.

If the wife leave the husband and commit adultery, he is not
liable to provide her necessaries ; but if he voluntarily pardon
her and take her back, he becomes again liable.
Harris v. Morris, supra. See Rex v. Flintam, 1 Barn. & Adol. 227.

And though, in general, her adultery discharges the husband,
yet if the husband leave her in possession of his [)ouse with her
adulterer, with children bearing his name, he will be liable for
necessaries furnished under such circumstances to the wife and
children ; for the suffering her to remain in the house, enables
her to procure credit.

If a man cohabits with a woman, holding her out as his wifegi
he is liable for her debts as if she were his wife, [j
Munro v. De Chemant, 4 Camp. 215.

ford v. Laton,

iMoo.&M.

101.

1 Stra. 647.
2-Stra. 707.
Govier v.
Hancock,
6 Term R. 603

Norton v.
Fazan, 1 Bos.
& Pull. 226.

Robinson v.

Nation,

1 Camp. R. 245.

But if a wo-
man takes up
goods, and
pawns them
before they are
made into
clothes, the
husband shall
not pay for
them, because
they never

Since the resolution in Manby v. Scott^ there have been several
cases in which tradesmen have recovered in actions brought
against the husband for goods delivered the wife; and in all
these cases the judges have laid down the distinction of an im-
plied promise, and directed it as a sufficient foundation to charge
the husband ; and in their directions, have shewn as much favour
as possible to such tradesmen as intrusted her on the credit
of her husband, and were in no combination with the wife to
charge him

came to his use ; iecus^ if made up and worn and then pawned. Salk.118. pi. 10.

If she
pawns

(H) Hoivfar Husband botmd by her Contracts for Necessaries. 721

fiawns her clothes, and borrows money to redeem them, husband not liable. 2 Show. 285.
f husband and wife by agreement live separate, and she has a separate maintenance, it will be
presumed that those who deal with her trust her on her own credit. Salk. 116. pi. 6. Ld.
Raym. 444, Sid. 124. 12 Mod. 245. 6 Mod. 171. Vide Skin. 348. pi. 18. Warning a trades-
roan's servant not to trust her, sufficient warning to the master. Salk. lis. pi. 10. 2Ld.Raym.
1006. A tradesman who sold lace and silver fringes for a petticoat and side-saddle, which
amounted to 94/., and all within four months, to the wife of a Serjeant at law, afterwards a
judge, recovered against him. Morton v. Withens, Skin. 348.

II As the husband's liability is grounded on an implied au-
thority to the wife to contract the debt, it is removed where the
circumstances rebut the presumption of auch an authority. Co-
habitation raises a presumption of the husband's assent and
authority to contract debts for necessaries. In considering the
question of authority, the estate and degree of the parties is a
fit subject for consideration ; and so also is the nature of the
articles. The question, what are and are not necessaries, ac-
cording to the degree and estate of the parties, is a question for
the jury. If there are any circumstances to shew an assent by
the husband, it is a question for the jury, whether the debt was
contracted under his assent, or not ; but if there is no evidence
of assent, the plaintiff will be nonsuited. If the goods are not
necessaries, the burden of shewing an assent by the husband lies
on the plaintiff.

The plaintiff, a jeweller, in the course of two years, de-
livered jewellery to the wife of defendant, to the value of 83/,
the defendant being a special pleader, living in a ready-
furnished house at 200/. rent, and keeping no man servant,
having received less than 4000/. fortune with his wife, and she
having had jewellery on her marriage sufficient for her con-
dition; it appeared that the wife had never worn any of the
articles in the presence of the defendant, and that the plaintiff,
on calling for payment, had always asked for the wife, and not
for the defendant ; the court held, that the articles could not be
considered necessaries, and that there was no evidence in the
circumstances, to go to a jury, of an assent by the husband to
the contract ; and consequently the plaintiff was nonsuited.

If the husband and wife are not cohabiting, the husband, in
general, is only liable for necessaries supplied her; but even
where they are parted, if the husband sees the goods supplied to
her, and does not have them returned, he adopts her act and
renders himself answerable.

And if a husband permits his wife to assume a style and ap-
pearance in life above her real station, he is liable for necessaries
Suitable to such apparent condition; but if a tradesman, in such
case, neglect to make proper enquiries, by which he might have
ascertained the real situation of the parties, he cannot claim of
the husband for any thing beyond necessaries suitable to their
real condition.

And if a tradesman has notice of circumstances which rebut
any assent to the wife's contracting the debt, he cannot come
upon the husband even for necessaries. Thus, where the trades-

Mont£^ue V.
Benedict,
3 Barn. & C.
631.

Waithman v.
Wakefield,
1 Camp. R.
119.

Hunt V. De
Blaquiere,
5 Bing. 550.

man had notice of the husband making the wife an allowance for
Vol. I. 8 A the

Holt V. Brien,
4 Barn. & A.
252.

722

BARON AND FEME.

the supplj' of herself and family with necessaries during his tem-
porary absence; it was held, that he must be considered as
trusting the wife alone. '

And where the goods are not necessaries, and it appears from
circumstances, such as debiting the wife in the tradesman's books^
her acceptance of bills, or giving a note for the goods, ^c.j that
Shaw, 3 Camp, the credit was given to the wife only, the husband will not be
R. 22. liable, although he may be living with his wife.

And whether the credit in such case be given to the wife or
to the husband, is a question of fact for the jury.

Where a wife carried on business on her own account during
the imprisonment of her husband, and he returned to live with
her after his discharge; it was held, that he was liable for articles
furnished in this business with his knowledge after his return,
though the invoices and receipts were in the name of the wife,
and she was rated to and paid the poor's and paving rates.

And if the husband supply his wife with necessaries, he is not
liable for debts contracted by her without his previous authority
or subsequent assent. ||

An ordinary working man married a woman of the like con-
dition, and after cohabitation for some time, the husband left
her, and during his absence the wife worked ; and this action
being brought for her diet, it was holden, that the money she
earned should go to keep her.

If the wife, whilst she lives separate from her husband, and
hath a separate maintenance, buys goods of tradesmen who
know of the separation and maintenance, they cannot sue the
executors of the husband in Chancery for these goods ; neither
will equity give the executors any relief, because they have $.
very good defence at law.

Bentley r.
Griffin,
5 Taunt. 356
Metcalfe v

Peters v. An-
derson, 3 Bing,
170.

Seaton v.
Benedict,
6 Bing. 25.

Salk. 1 1 8.
pi. 11 . Rilled
on evidence.

Vern. 71. [At
law a wife
cannot make
her husband
liable for mo-
ney borrowed,
though lent
and applied

for the buying of necessaries. 1 Salk. 387. But in eqnity the creditor vrill be] allowed tb
stand in the place of the tradesman, and to have satisfaction as far as they could if they hai
been plaintiffs. Preced. in Chan. 502. 1 P. Wms. 482. Where equity will decree a wife »
separate maintenance, vide Abr. Eq. 68. [There certainly are cases where equity has decreed
alimony to the wife ; but whether the decrees proceeded upon a previous divorce in the Eccle-
siastical Court, or upon an agreement between the parties, in many cases doth not appeal.
Lasbrook v. Tyler, 1 Chan. R. 24. Ashton v. Ashton, Jd. 87. Russell v. Bodwill, Id. 99.
Whorewood v. Wborewood, Id. lis. 1 Chan. Ca. 250. But it is observable, that all thetjp
cases, except that of Lasbrook v. Tyler, were during the times of the troubles, when commis-
sioners were appointed, to whom jurisdiction was expressly given, and whose decrees were
holden to be confirmed by the act for the confirmation of judicial proceedings. 1 Chan. R.
118. In Nichols v. Danvers, 2 Vern. 761., proceedings had been had against the husband, as
appears from the registrar's book (though not noticed in Mr. Vernon's report), in the Ecclesi-
astical Court, propter scsvitiam; and in Oxenden v. Oxenden, it appears irom Gilbert's report
of it, that there had actually been a divorce propter sccvitiam; and in Angier v. Angier, Gil^.
Eq. R. 172. there was an agreement. But in Williams v. Callow, 2 Vern. 752., the court cer-
tainly does appear to have decreed the wife a separate maintenance out of a trust fund, or
account of the cruelty and ill-behaviour of the husband, though there was no evidence of a
divorce or agreement that the fund in dispute should be so applied. And in Watkyns f .
Watkyns, 2 Atk. 96., the husband having quitted the kingdom, Lord Hardivicke decreed the
wife the interest of a trust-fund, till he should return and maintain her as he ought. Yet iri
Head V. Head, 3 Atk. 547., Lord Hardivicke observes, that he could find no decree to compel!'-
husband to pay a separate maintenance to his wife, unless upon an agreement between then),an^l
even then unwillingly ; and this opinion of Lord Hardwicke appears most reconcilable to priif-
ciple ; for the case of a d\\orc& propter stevitiam^may be considered as an implied agreement;^
and if there be an express or implied agreement, there seems no doubt but that courts dt

equifr'

f H) How far Husband bound by her Contracts fcr Necessaries. 723

equity may, concurrently with the Spiritual Court in proceeding upon it, decree a separate
maintenance. Wood's Inst. 62. Sealing v. Crawley, 2 Vern. 386. Guth v, Guth, 3 Bro.
Chan.R. 6. ||But it seems the court will not enforce such agreement if made between the
husband and wife alone. Legard v. Johnson, 5 Ves. 352. St. John v. St. John, 1 1 Ves. 532.
EI worthy V. Bird, 2 Roper, 298.; though it is otherwise where the husband agrees with a
trustee for the wife. /(f.|| The Spiritual Court, however, would be the more proper juris-
diction, if it acted in rem. Lit. R. 98. 2Atk. 511. But if after an agreement between
husband and wife to live separate they appear to have cohabited, equity will consider the
agreement as thereby waived. Fletcher v. Fletcher, Mich. 1788. HDurant v .Titley, 7 Price, 577.
Hindley v. Marquis of Westmeath, 6 Barn. & C. 200. Westmeath v. Westmeath, 1 Dow.
P.C. N. S. 519. accJ\ It is observable, that if courts of equity had an original and concurrent
jurisdiction with the spiritual courts, it would have been unnecessary to have given the com-
missioners during the troubles such jurisdiction ; and that the doubt in 1 Chan. R. 1 1 S. could
not have been raised respecting the validity of their decrees after the act for confirming
Judicial proceedings. Besides, even in the spiritual courts they do not pretend to the right of
decreeing alimony, but as incidental to a decree of divorce ; and a decree of divorce or separa-
tion was never suggested to be within the jurisdiction of a court of equity. Fonbl. notes on
Eq.,Tri. 96, 97. And Lord Chancellor Loughborough is reported to have said, that he took
it to be established law that no court, not even the Ecclesiastical Court, hath any original
jurisdiction to give a wife separate maintenance. It is always as incidental to other matter that
she becomes entitled to a separate provision. If she applies to the Chancery upon a supplicavit
for security of the peace against her husband, and it is necessary that she should live apart, as
incidental to that the Chancellor will allow her a separate maintenance. So in the Ecclesiastical
Court, if it is necessary for a divorce a mensd et thoro propter stBvitiam. 2 Ves. jun. 1 95.J

Hit is now settled, that if a husband, living separate from his Nursev. Craig,
wife, whether by a deed of separation or otherwise, allows her u'^fT-^* ^^^*
an adequate separate maintenance, and regularly pays it, he is p]ctcher^°" ^'
not liable for her debts ; and the adequacy is a question for the 4 Camp. R. 70.
jury under all the circumstances. And it appears not necessary Ozard v.
that the creditor should have notice of the separate maintenance Damford,
in order to discharge the husband. 26i Turner

V. Winter, Ibid. Sed vide 3 Esp, Ca. 250. that notice is necessary.

A pension enjoyed during pleasure from the crown, by the wife, Thompson v.

has been held not to exempt the husband from such liability. ^^''^^^'n

^ -'4 Burr. R.

2177.; but see 2 Stark. Ca. 86. that the provision, if adequate, need not be derived from the

husband.

Nor will an absolute transfer by the husband, to trustees for Barrett v.

the wife, of personal property, unless the husband shews that ^^°?^-^»
the trustees have given effect to the deed by taking possession.

Though the wife be living separately on a separate main- Hombuckle

tenance, if the husband promise to pay a debt contracted by her v. Hombury,

he is liable for it. ^^ / 2 Stark. 177.

The deed of separation, in order to be valid, must provide for St. John v. St.
an immediate, and not for a future separation at the will of ^^jj"; '^ Ves.

_!a1 . o-'O^f ctnci sec

either party. D^rant v.

Titley, 7 Price, 577. Hindley v. Westmeath, 6 Barn. & C. 200. Westmeath v. Westmeath,
iDow.P. Ca. N. S.519.

Though where the deed made provision for any future sepa- Rodney v.
ration, that should take place with the approbation of the trustees^ ?t*."?T3
the court held it legal on the ground of such approbation being ~ '" '
required.

If the maintenance is covenanted to be paid to the wife during ,^."r^"' ^" .
her life, she is entitled to receive it although she may commit ^yy^^j^c y"*^^*
adultery, and although she may be divorced a mensd et thoro. 'i'huriow,
8 Barn. & C. 547. Hindley v. Westmeath, 6 Barn. & C. 200. Field v. Serre?. 1 New R.121.

8 A 2 If

724. BARON AND FEME.

Hunt V. De If the husband is separated by a divorce a mensd et thoroy he

5 B^n&^io. is liable for necessaries supplied to his wife unless he pay the
alimony decreed. ||

(I) What Acts done by the Husband or Wife alone,
or jointly with the Wife, shall bind the Wife ; and
herein of her Agreement or Disagreement to such
Acts after the Death of her Husband.

Roll Abr 346 npHE husband, as head and governor of the family, hath an
547. 2 Inst. ' absolute power over the chattels real and personal which he

510. loCo. 42. is possessed of in right of his wife, to dispose of them as he
Sid. 11. [In thinks proper, and no act of concurrence of her's is of any avail,
wlfe's^ccmtent ^'^^^^'^ ^^ confirming or controlling such disposition : but the real
is necessary to estate is under a different regulation, and not under the power of
the disposal of the husband, longer than during the coverture ; and therefore
her personal ^^y disposition of it made by him alone may be defeated ; also
she is person- ^^^ charges laid on it by him, fall off with his death,
ally examined in court as in the case of fines levied at law.}

2 Inst. 681. At common law, any alienation made by the husband of the

(a) If she ne- wife's land, whether by feoffment, (a) fine, or recovery {b\ wa*
wfthin fivT ^^ ^ discontinuance ; and after his death she was put to her cui in
years after the "vita, to reinstate herself; but now by the statute of 32 H. 8.
death of her c. 28. it is provided, that no Jine levied by the husband alone, of
yf^^^^* ^"'^ /a«^5, being the freehold and inheritance of the 'wife, shall in any
with nroclam- ^^^^ ^^ ^^ make a discontinuance, or be otherwise prejudicial to her
tion, her entry or her heirs ; hut that the licife and her heirs shall and may laisfully
is taken away, enter into the said lands accordiiig to their rights aiid titles
and her right fhereiyi.
for ever extin-
guished. For this mde Co. h\t. 5'26. Dyer, 72. 162. Plowd. 373. 8 Co. 72. 2 Inst. 681.
9 Co. 140, If lands be given to husband and wife, and the heirs of their bodies, and the hus-
band alone levies a fine thereof, the wife may enter after his death by force of this statiita
9 Co. 138. 2 Inst. 681. Cro. Car. 477. {b) That a recovery suffered by the husband alone
is void, d</e F. N. B. 468. Booth, 185. 2 Inst. 343. Plowd. 57. [The husband alone majf
make a tenant to the praecipe. Vide supra (C).]

Bro. tit. Fines, If a feme covert levies a fine of her own inheritance, without
33.^10 Co. 43. jjgj. husband, this shall bind her and her heirs, because they are!
7 Co. 8 Co estopped to claim any thing in the land, and cannot be admitted
Lit. 46. If a to say she was covert against the record ; but the husband may
feme covert, enter and defeat it, either during the coverture, to restore hira
as sole, levies ^^ ^^ freehold he held jure tixoris, or after her death to restore
tory and exe- himself to his tenancy by the courtesy ; because, no act of a
cution is sued feme covert can transfer that interest which the intermarriage
against the hath vested in the husband; and if the husband avoids it during
husband and ^j^g coverture, the wife or her heirs shall never after be bound
wife, he may i '^
stop the exe- "Y ^^'

cution, because no act of her's can prejudice him ; and if in this case the husband makes de-
fault, and she is received, she may for the benefit of her husband disturb the execution of her
own fine ; but after the death of her husband she cannot avoid it. Bro. tit. Fine, 79. Co.
Reading, 9. [An entry by the husband into part only of the land, whereof the wife alone
levied a fine, will avoid the whole fine. Mayo v. Combes, 1 Freem. 396. There is one instance
of a married woman being allowed to levy a fine without her husband. The husband had sold

lands.

(I) What Acts sJiall bind the Wifcy <^c. 725

lands, and covenanted that he and his wife (when of age) should levy a fine. When the wife
came of age she refused to join in it; but it was levied by the husband alone, who afterwards
went abroad. The wife afterwards consented to levy it, but the husband was absent. It was
said, upon motion to levy it, that it had been usual in such cases for the curator to make out
a prtEcipe to the wife as a feme sole; but no example of it was produced. The court would
make no rule to authenticate such a fine ; but it was afterwards acknowledged de bene esse
before the lord chief justice, then in court. Moreau's case, 2 Black. R. 1205.]

If a husband and wife join in a fine to convey her own inherit- is E. 4. 12.
ance, it ought to be received, if, upon her {a) examination it ap- ^o\\. Abr. 347.
pears to be voluntary and free from constraint; and if she be of | .^' J' ®*
full age, the fine shall bind her as if she had been sole. 3Atk.7i2.

(/i) Note : The books which say, that a fine shall not bind a woman under coverture, unless
she be examined, must not be construed as if it were in her power to reverse the fine for want
of her examination ; but they are to be understood in this sense, that the judge ought not to.
receive a fine without examining her. 2 Inst. 515.

The examination of a feme covert is not always necessary in 2 Inst. 515.
levying fines, because that being provided that she may not at
the instance of her husband make any unwary disposition of her
property, it follows, that when the husband and wife take an
estate by the fine, and part with nothing, the feme need not be
examined : but where she is to convey or pass any estate or in-
terest, either by herself or jointly with her husband, there she
ought to be examined; therefore, if A. levies a fine come ceo to 2 Roll. Abr. 17.
baron and feme, and they render to the conuzor, the feme shall
be examined ; so it is where she takes an estate by the fine,
rendering rent.

If husband and wife levy a fine, and the wife is within age, F.N.B.21.
they may join in a writ of error to reverse it during the minority Leon. 15.
of the wife, not by any privilege of coverture, but because, fop this »irf(? "
during her state of infancy, no act of her's can be so obligatory head of Fines
as not to be cancelled, if she thinks it prejudicial to her. and Recoveries.

If a man makes a jointure on his wife, either before or after Co. Lit. 36.
marriage, and they both join in a fine, she is bound thereby ; Dyer, 358. For
and if the jointure was made before marriage, she is barred to *1"? J' ^ ***'
claim dower in any other lands of the husband's : but if the
jointure was made during coverture, she may claim dower in the
other lands.

If baron and feme by fine sur concessit grant land to J. S. for 2 Sand. 177.
99 years, and warrant the said land to J. S. during the said ^'^'^^290^'^*
term, pid the baron dies, and J. S. is evicted by one that hath 2 Keb. 684.
a prior title, he may thereupon bring covenant against the feme, 703. Wotton
notwithstanding she was covert at the time when the fine was and Hale,
levied.

A recovery, as well as a fine by a feme-covert, is good to bar '^^Jj* ^''
her, because the prcecipe in the recovery answers the writ of ^*;° * ^'
covenant in the fine to bring her into court, where the examin-
ation of the judges destroys the presumption of law, that this is
done by the coercion of her husband, for then it is to be pre-
sumed they would have refused her.

But if a wife alone, or with her husband, bargain and sell her 2 Inst. 673
lands by deed indented and enrolled, yet it shall not bind her; Hob. 2^5.

3 A 3 for

7^26

BARON AND FEME.

for a wife cannot be examined by any court without writ, and

there is no writ allowed in this case.
„ ^ , ,, If a ferae covert ioin with her husband in levvinff a fine to
money shall be ^^'^^ ^ ^"'^ <** money by way of mortgage, this shall bind her. i
paid out of the personal estate of the husband, vide Brend v. Brend, 1 Vern. 213. [If a wife!
charge her estate with payment of her husband's debts, or apply her separate estate to such'
purpose, and it do not appear to have been intended by her as a gift to her husband, equity
will decree the husband's assets to be applied in exoneration of her estate, or in repayment
of the money advanced. Earl of Huntingdon v. Countess of Huntingdon, 2 Vern. 147. 1 Bro.
P. C. 1. S.C. Pocock V. Lee, 2 Vern. 604. Tate v. Austin, 2 Vern. 689. 1 P.Wms. 264.'
S. C. Bagot V. Oughton, I P. Wras. 347. Evelyn v. Evelyn, 2 P. Wms. 659. Lewis v. Nangle, '
Anibl. 150. Earl of Kinnoul v. Money, cited in 3 Bro. Ch. R. 206. Clinton v. Hooper, 3 Bro. ,
Ch R. 201. Parteriche v. Powlet, 2 Atk. 384. Lacam v. Mertius, I Ves. 513. Astley v.
Earl of Tankerville, 3 Bro. Ch. R. 545.] But for this vide head of Mortgage. Where she shall
be bound to a specific performance of her agreements in equity, vide tit. Agreevwnts^ and
2 Vern. 61.

If a husband disseise another to the use of his wife, this
does not make her a disseisoress, she having no will of her own,
nor will any agreement of hers to the disseisin during the cover-
ture, make her guilty of the disseisin, for the same reason : but
her agreement after her husband's death will make her a dis-
seisoress, because then she is capable of giving her consent, and
that makes her tenant of the freehold, and so subject to the
remedy of the disseisee.

So if a man disseise another to the use of a feme covert, her
agreement to it signifies nothing; for though the husband's
agreement to it settles the estate in the wife, yet it makes her no
sharer in the guilt of the disseisin.

But if a feme covert actually enter and commit a disseisin,
either solely or together with her husband, then she is a dis

d !

Roll. Abr. 660.
Bro. Disseisin,
67.

Co. Lit. 357.
Roll. Abr. 660.

Bro. Disseisin, seisoress, because she thereby gains a wrongful possession ; but
yet such actual entry cannot be to the use of her husband or a
stranger, so as to make them disseisors, because though by such
entry she gains an estate, yet she has no power of transferring it
to another.

If the husband seised of lands in right of his wife, make aj
lease thereof for years by indenture or deed poll, reserving rent; |
all the books agree this to be a good lease for the whole term,
unless the wife, by some act after the husband's death, shews her ,
dissent thereto; for if she accepts rent which becomes due after:
his death, the lease is thereby become absolute and unavoidable :
the reason whereof is, that the wife after her intermarriage being
by law disabled to contract for, or make any disposition of
her own possessions, as having subjected herself and her whole
will to the will and power of her husband ; the law thereupon
transfers the power of dealing and contracting for her possessions .;
to the husband, because no other can then intermeddle there- ■.
with ; and without such power in the husband they would be I
obliged to keep them in their own manurance or occupation, ,
which might be greatly to the prejudice of both : but to prevent
the husband from abusing such power, and lest he should make
leases to the prejudice of the wife's inheritance, the law has left

cumstanccs by ^er at liberty after his death, either to afiirm and make good

such

15.67. Vide
8H.6.14. co?j/.

Bro. Accept-
ance, 10. Bro
Leases, 24.
Cro. Jac. 332.
2 Andr. 42.
Co. Lit. 45,
Plow. 137.
Cro. Jac. 563.
Yelv. 1. Cro.
Eliz. 769. [It
hath been
holden that a
mortgage for
years by hus-
band and wife
of the wife's
inheritance,
without any
fine levied,
may be con-
firmed by cir-

(I) What Acts shall bind the Wife, <Jr. 727

such lease, or to defeat and avoid it, as she finds it subservient the wife when
to her own interest : and this she may do, though she joined in ^jscovert,
such lease, unless made pursuant to the statute 32 H. 8. c. 28. be ncTactud
re-delivery of the deed. Goodright v. Straphan, Cowp. 201. But see Drybutter v. Bartholo-
mew, 2 P. VVms. 126.] As to leases made by husband and wife, either at common law or by
virtue of 52 H. 8., vide head oi Leases and Terms for Years.

Husband and wife made a lease for years, by indenture, of
the wife's lands, reserving rent ; the lessee enters, the husband
before any day of payment dies, the wife takes a second husband,
and he at the day accepts the rent and dies : it was holden, that Dyer, 159.
the wife could not now avoid the lease, for by her second mar- ^°J|* ^' ^^f*
riage she transferred her power of avoiding it to her husband,
and his acceptance of the rent binds her, as her own act before
such marriage would have done, for he by the marriage suc-
ceeded into the power and place of the wife; and what she might
have done, either as to affirming or avoiding such lease before
marriage, the same may the husband do after the marriage.

The husband being seised of copyhold lands in right of his 2R0II. R. 344.
wife in fee, makes a lease thereof for years, not warranted by the 361.572. Cro.
custom, which is a forfeiture of her estate ; yet this shall not gu^' ^49^
bind the wife or her heirs after the husband's death, but that 4 Co. 29.
they may enter and avoid the lease, and thereby purge the
forfeiture : and the diversity seemeth between this act, which is
at an end when the lease is expired or defeated by the entry of
the lord, or the wife after the husband's death, and such acts as
are a continuing detriment to the inheritance, as wilful waste by
the husband, which tends to the destruction of the manor ; so
of nonpayment of rent, denial of suit or service; for such
forfeitures as these bind the inheritance of the wife after the
husband's death; but in the other case, the husband cannot
forfeit by this lease more that he can grant, which is but for his
own life.

II By the 9 G. 1. c. 29. it is provided that married women sG. i.c.29.
entitled by descent or mrrender to use of a will, who have not
been admitted, maybe admitted tenants of their copyhold estates
either personally or by their guardians or attorneys ; and in case
of neglect, that the lords of whom the lands are holden may
appoint guardians or attorneys for the purpose, and impose and
levy the usual fines, and receive the same out of the rents of the
estate, accounting for the surplus to the persons entitled, and no
neglect or refusal to be admitted or pay the fines shall be a
forfeiture of the copyhold.

This statute only applies to the cases of women entitled by Kensincton v.
descent or surrender to use of a will; and therefore, in other Mansell,
cases not within the statute, the lord may seize the estate until jj' '^ H^n*
admittance, (w enter for a forfeiture if the custom authorize it. 3 Term R. 170!

If the husband of a copyholder obtain an enfranchisement. Doe v. Jack-
and take a feoffment in fee of the lord with livery of seisin, it ^^"' ' ^"'■"- &
seems (though it has not been decided) that the feoffment '^^^'
operates only as a release of the services, and leaves the estate
descendible as before. ||

3 A 4 A woman

728

BARON AND FEME.

Plow. 293. Co
Lit. 351. Roll.
Abr. 345.

A woman guardian in socage marries, and joins with her hus-
band by indenture in making a lease for years of the ward's
lands, yet after her husband's death she may avoid the same;
for though the husband has absolute power to dispose of all
chattels, either real or personal, whereof he is possessed in right
of his wife, and the wardship of the body, and land in this case
is but a chattel ; yet the wife being possessed of it in right of the
infant, and accountable to him for the profits when he comes of
age, the husband's disposition shall not bind her after his death,
but that she may avoid it in right of the infant, whose guardian
she still continues to be ; and her own joining in the lease was
not material, because she was then under coverture.

A feme covert is capable of purchasing (a); for such an act

[(a) A bond to does not make the property of the husband liable to any dis-
her singly is advantage, and the husband is supposed to assent to this, as being
for his advantage ; but the husband may disagree [b] ; and it
shall avoid the purchase : but if he neither agi'ees nor disagrees,
the purchase is good ; for his conduct shall be esteemed a tacit
consent, since it is to turn to his advantage. But in this case,
though the husband should agree to the purchase, yet after hij
death she may wave it ; for having no will of her own at the tim<
of the purchase, she is not indispensably bound by the contract
therefore if she does not, when under her own management anc
will, by some act express her agreement to such purchase, hei
heirs shall have the privilege of departing from it.

1 Ld. Raym. 224. The like remedy he may have for money lost by the feme at cards. Rej
V. Stevens, cited in 1 Sid. 112. The receipt of money by the feme will be binding upon the
husband, if it appear that she iisiially receives and pays money for him. Seaborne v. Blackston,

2 Freem. 178.1

Co. Lit. 3 a.

good. Bro. tit.
Obligation,
p. 36. Testa-
ment et
Volunt. p. 9.
ifi) And if he
do, he may
maintain tro-
ver for the re-
covery of the
purchase-
money. Gar-
brand V. Allan,

Co. Lit. 112a.
note 6. Pea-
cock v. Monk,
2 Ves. 191.
IJDownes v.
Timperon,
4 Russ. 334.11
Gibbons v.
Moulto, Rep.
temp. Finch,
546. SirW.
Jones, 137.
Vide note 6.

[A wife may, without her husband, execute a naked authority,
whether given before or after marriage. So where both an interesr
and an authority pass to the wife, if die authority be collateral to,
and do not flow from, the interest ; because then the two are
unconnected as if they were vested in different persons. And
a feme covert may, without her husband, convey lands in mer^
execution of a power or authority, so may she, with equal effect
in performance of a condition, where land is vested in her oi
condition to convey to others. It seemeth doubtful, however,"
whether she can convey lands which she holds as trustee without
her husband joining in the conveyance. al

Co. Lit. 112a. _ . -/-.T

Fonbl. notes on Eq. Tr. 85. j|\Vhere husband and wife have a joint power to appoint the wife v
estate by formal deed, and they agree to sell it, the agreement is not binding on the woman.
Martin v. Mitchell, 2 Jac. & W. 425.||

If a note be made payable to a feme sole or order, and she
afterwards marry, she cannot, during the coverture, indorse it.]

II But the husband may sue alone on such bill without its being
indorsed ; for by the marriage it is absolutely vested in the
husband.

Connor v.
Martin,
sWils. 5.

M'Neilage v.

HoUoway,

1 Barn. & A.

218.; and see

Philliskirk v. Pluckwell, 2 Maule & S. 393.

Barlow v. If a note is given to a married woman carrying on trade as a

feme

(K) Where the Husband and TVife miistjoin in Actions, 729

feme sole with her husband's assent, in order to indorse it to the Bishop, \ East
plaintiff one of her creditors, yet the property in the note vests ^* '^^^'
in the husband by the delivery to the wife, and no interest passes
to the plaintiff by her indorsement. If she indorsed it in her
husband's name, qiuEre^ whether the jury might presume an
authority from her husband for that purpose?

If after the indorsement, the maker promise the indorsee to Cotes v. Davis,
pay it, the maker cannot resist payment on the ground of the ^ ^^T- 484.
wife's want of authority.

Where the husband had taken a bond conditioned to pay an Brown v. Ben-
annuity to the wife, it was held that the wife without the assent so"» 3 East R.
of the husband could not discharge the obligor from certain ^^^'
payments of the annuity, in consideration of his discharging
certain debts due from the husband to the obligor.

If the wife without authority from her husband contract with White v. Cuy-
a servant by deed, the servant cannot sue the husband on the ^^^> ^ Term R.
covenant, since the wife made it without authority; but the Clifford" R^^
servant may sue in indebitatus assumpsit for the work and labour ton, 1 Bing. r"
done. II 199.

[The bond of a feme-covert is void ; and so is her appointment „ ^.,
of an attorney; for she is incapable of executing a deed.] 2Saund.*2i5.

IJOuIds V. Sansom, 3 Taunt. 261.|| But if a woman seal a bond in the presence of her hus-
band, and he stand by, and do not gainsay, it shall bind him. Cited per Master of the Rolls,
as adjudged in the time of H. 8. 2 Freem. 218. ||As to the will of a feme covert see tit.
WilU and Testavtent (B}.1|

(K) Where the Husband and Wife must join in
bringing Actions.

TN those cases where the debt or cause of action will survive to Roll. Abr.347.

the wife, the husband and wife are regularly to join in the Moor, 432.

action ; as in recovering debts due to the wife before marriaffe, ^ "^"f

, .. * u r u 1 I • u •* . . 9 ' covert can m

HI actions relating to her freehold or inheritance, or injuries „(, ^^^ g^g

done to the person of the wife. without her

husband, vide letter (M).
II And as it is necessary for the wife to join her husband in an Rumsey v.
action for a debt due to her before marriage, so also the hus- George,
band alone cannot be petitioning creditor under a commission of ^ Maule & S.
bankrupt in respect of a debt partly due to his wife dum soloy y®' ""t see
and partly to himself since the marriage. Barber 1 Glyn

& J. 1. Where husband and \fife sued for money lent by the wife before marriage, and she
died pending the suit, it was held the suit abated. Checchi v. Powell, 6 Barn. & C. 253.

If the wife is joined, her interest must appear on the face of Serresv.Dodd,
the declaration, or it will be bad. ^ ^^* ^- ^°^'

If in replevin a joint demise is stated by the husband seised ^**'"'7]!; ^'"-
in right of his wife, and his wife, it is disproved by evidence of a ^\qq ^""^'
receipt for rent given by the husband alone. ||

If a feme sole hath a rent-charge, and rent is arrear, and she Cro.Eliz. 459.
marries, and the baron distrains for this rent, and thereupon n Owen,82.S.P.

rescous is made, this is a tort to the baron himself, and he may ^ ?^'^'/^x^A»
1 .^- I / \ "^ S.C. (a) Or

liave an action alone, (a) may join his

wife therein, because it arises upon a duty due unto her before coverture. Cro. Eliz. 459. per cur.

730 BARON AND FEME.

2Bulst.i4. ad- So if a feme sole hath right to have common for life, and she
judged. {b)The takes husband, and he is hindered in taking the common, he
baron seised of ^^^^ j^^^^ ^^^ action alone without his wife (6), it being only to
Tiferandjn recover damages.

the right of his feme, leased for years to the defendant, who burnt the house, and the baron
alone brought an action for this; and whether it lay diibitaiur ; because the damage was done
to the estate of the feme ; and if she dies, the baron is not chargeable over in waste, in regard
of which only an action lies ; because it was the folly of the plaintiff that he made no special

provision against waste. Cro. Eliz. 461. If A. demises a house to B. for years, and B.

covenants to repair the said bouse during the term, and after A. grants the reversion to biiron
and feme, &c. ; the baron may have an action alone upon this covenant ; for therein damages
only are to be recovered. Cro. Jac. 319. adjudged. 3 Bulstr. 163. Roll. Rep. 359. S.C.
adjudged.

j^ , But if baron and feme are disseised of the land of the feme*

They must ^^Y must join in an action for the recovery of this land,
join in detinue for charters concerning the wife's inheritance. 38 H. 6. 4. Roll. Abr. 347. So
in trover for a deed by which a rent-charge was granted to her dum sola, though it came to
the hands of the defendant after coverture. Noy, 70. For rent due to her before coverture
as tenant in dower. Roll. Abr. 318. 348, Vide Bulstr. 135, 136. Cro. Jac. 283. and qucere
if since 32 H. 8. c. 37. there is any difference where the avowry is made for rent due before,
and where after marriage. — — Whether the husband alone may bring a quare impedit, vide
Co. Lit. 551 a. Owen, 82. Lit. 13. 357. Winch. 73. 2 Bulstr. 14. Jenk. 2, 3, Bulstr. 110.

Cro. Eliz. 608. If the baron be possessed of a rectory for years, in right of his
13C0.47.S.C. feme, he and his feme may join in an action upon the 2 & 3
Moor, 912. E. 6. c. 13., for not setting forth tithes; for the possession of the
650 S C baron is in the right of the feme, and the action is given by

cited. 2 Mod. ^^^ statute to the proprietor.
270. S. C. cited. Jenk. Rep. 273. S. C. said to be adjudged that the baron might have the

action alone. Vide 1 Brownl. 9. I Jones, 325. If a stranger cuts trees upon the land of

the feme, they may join. 15 E. 4. 9. b. Cro. Car. 4377. So they may join in trespass

quare clatuum /regit. But Lit. Rep. 285. cont.

Bulstr. 110. If a feme sole is possessed for years of a close, to which time

2 Vent. 197. out of mind there hath been a way through the close of J". S. next

Skidged *^^' ^^Joi"'"g> and J. S. erects a building ex transversa vice padict.,

2 Mod. 217. so that she cannot use the said way, and after she marries, the

S.C. cited, ar- baron and feme may join in an action for the stoppage during the

guendo, as if coverture, declaring that after the said marriage they could not

shi mmt jom. "^^ ^^^ ^^^^ ^^^^ '^'^' (^^' because the wrong was done to the
Jones, 367. * feme, and the baron had the close in her right, {b)
S. C. but S. P. does not appear, (a) For enclosing twenty acres of waste, in which the feme
had common, ita quod they could not, as before, take the profits with their cattle, &c.; and
because a feme^ covert cannot have cattle. Lit. Rep. 2S4, 285., the court inclined for the
defendant ; but it does not appear what judgment was given, (b) So in an action for not

grinding at the wife's mill. Hob. 189. So where the feme had right to all the lop of

certain trees during life, and the owner cut them down. Cro. Car. 437. adjudged. Jones, 376.
In which last book it is said the exception was, that the action was brought by the baron
alone, and yet adjudged for him.

s Mod. 269. If ^' declares that he was seised, in right of his wife, of a

Frosdick and messuage, bakehouse, 4*^., and that the defendant erected two
Sterling ad- houses of office so near the said bakehouse that the walls thereof
"Sarthe cases ^^^^^"e foundrous, and the air so unwholesome that he lost his
Cro. Car. 419. custom, Sfc.; the action lies for the husband alone.
Jones, 367. Lit. Rep. 284. Hob. 189. warrant no more than that the wife may be joined,
not that of necessity she must.

(K) IVhere the Husband and Wife must join in Actions, 731

If A. leases to B. for years, rendering rent, and after grants 9 Bulstr. 235.
his reversion to baron and feme, and B. attorns, and then Roll. R. 52. *
rent is arrear, and the term expires, the baron may bring an S.C. adjudged,
action alone for this rent, because this action is grounded upon ^ '^^"
the duty, and not upon the nature of their estate; and the money questioned but
must come to the baron ; and there is no difference where the baron
the baron and feme are ioint-lessors la\ and where ioint-pur- ""g^t bring
chasers. (4) ' l^'t.

when brought by both, it hath been doubted. Bulstr. 21 . per Yelv. ; et vide Lit. Rep. 13. Palm.
207. [They may join, ornot, at their election. Aleberry v. Walby, 1 Stra. 229. Beaver vl Lane,
2 Mod. 217.] {b) But in that case, 2 Bulstr. 234. per Dod. he must bring the action generally,
and not shew himself to be assignee ; but yet Roll. Rep. 52., it appears, the action was so
brought ; and yet held, joer cur. to be only surplusage.

II But if the husband and wife grant a lease of the wife's lands Hill v. Saun-
under seal, and the lessee covenant with the husband and wife, ^^ sBing.
and the heirs and assigns of the wife, to pay the rent, the husband
cannot, after the death of the wife, sue for the rent on the cove-
nant ; for, after the wife's death, the rent belongs to her heirs. ||

But if A. conveys lands to B. in fee, and covenants with him, Roll. Abr. 348.
his heirs and assigns, to make further assurance, and these lands ^^o. Car. 503.
are assigned to J. S. and his wife, and the heirs of J. S., they ^°f* ^i°^c*r>

. '^, . . . . , /•^i ^ J 406, 407. O \j,

must both jom in an action on the covenant for further assurance, adjudged, vide

3 Bulstr. 164. Roll. R. 300. Cro. Jac. 319.

But if a bond is made to a feme covert during coverture, con- ? Lev. 403. ad-
ditioned to pay money to the feme, the baron alone may bring '{i"*^^n."^?° *
an action upon this bond, (c) the declara-

tion ; and a case was cited by Powel, where upon a judgment obtained by baron and feme, the
baron only sued a scire facias for the damages and costs, and had judgment, (c) If a bond be
entered into to baron and feme, the baron may sue it alone, and thereby he shews his dissent
to his wife's taking any thing by it; 2 Mod. 217. [1 Stra. 229. ; though it be entered into to
the wife as administratrix. Ankerstein v. Clarke, 4 Term R. 616.]

If A.^ in consideration that JB., a feme covert, will cure a cer- Cro. Jac. 77.

tain wound, assumes and promises to B. to pay unto her 10/.; if 205. ^judged,

B. does cure it accordingly, she may join with her husband in Cam. Scacc.

an assumpsit for this money (</), for this promise arising upon a Sid.25. S.C.

matter of skill and performance of the wife, she is the cause of P'ted to be ad-

the action ; and such an action will survive to the wife. judged that

' ^ _ they ought to

i'oin. 2 Sid. 128., like point ; and per Glyn C.J. it may be in the name of both, or of the
msband alone. \d\ But whatever the consideration be, where there is an express promise
made to the wife, slie may join. Cro. Eliz. 61. But without an express promise, the action
does not lie ; for the fruit and labour of the wife belongs to the husband, for which he only
shall bring the action. Salk. 114. 4 Mod. 156. S.C. and S.P. Carth. 251. All. 3. 6. Stile,
9. 298.

II And the wife may join with the husband in an action on a pjjjuj.u- k
promissory note made to her during the coverture. Pluckwell

2 Maule & S. 393. ; and see 1 H. Black. 108

Where a wife sued jointly with her husband for a d^')t due to Cosio v.
them as partners trading together in Spain^ no evidence being ^® 4^ vf'^*
given, that by the law o^ Spain the wife could be a partner with cfi02.; and
her husband, they were nonsuited. Qtiaerey if such evidence had see i Stra,
been given, whether they could have sued jointly in England?^ 6i2.

732 BARON AND FEME. I

(a) Or the U A., in consideration that baron and feme had intermarried

baron may ^^ j^jg request, assumes and promises to them to pay unto the
bring the ac- « ^t i • i o / -.u *. j*

tion alone. All. *^™^ ^^' P^*' atmum dunng the coverture, SfC. ; notwithstanding
36. [Qm. If this the whole benefit redounds to the husband, yet in an action
be not the pro- thereupon they may join (a), a fortiori, because it is an executory
g!m™oq7 1 promise, and hath continuance, and is not to be done unica

Vice only.
Roll. Abr. 347. It seems clearly agreed, that for debts due to the wife (&), and

Mo. 422. S. P. ^jj causes of action before coverture, the husband must join in
kiid down as a ^, . ' *'

rule. Owen, the action.

82. Lit. Rep. 13. Keb. 440. 3 Term R. 631. The husband alone cannot bring an indebitat-
essumpsit, or an insimul computasset, for a debt due to the wife herself before coverture, much
less when it is due to her as executrix or administratrix. Sid. 229. 2 Keb. 89. [b) In con-
sideration that A. will marry his daughter B., assumes to give her as much as he gives any
other of his daughters, &c. ; and because this promise was made before marriage, whether the
baron and feme must not join in an action thereupon, dubitatur. Sid. 25.

M'Neilage v. ||But the husband may sue alone on a bill payable to the wife

i^b'°"^^&A ^^^°^^ marriage, and not indorsed by her; for the marriage

2jg * ' absolutely vests the bill in the husband. ||

Sid. 172. Keb. In an action upon a trover before marriage and a conversion

641. S.C. after, the baron and feme ought to join; for this action, as a

2l"*107*S P ^''^sp^ss, disaffirms the property; but the baron alone ought to

nnd that he bring a replevin, detinue, &c. (c) ; for these actions admit and

may join the affirm a property in the feme at the time of the marriage, which

wife at his by consequence must have vested in the baron.

election. [But

see 3 Term R. 631., in confirmation of the position in the text, (c) Vide Ca. temp. Hardw.

119.]

Carth. 462. But if A. declares that the defendant, being indebted to him

GMf'^'^l^d^ and his wife as executrix to one J. S., in consideration that A.
iudged.^ Salk. would forbear to sue him for three months, assumed, Sfc, and
117. pi. 8. Ld. avers that he forbore, and that his wife is still alive, the action is
Raym. 368. well maintainable by the husband alone, for this is on a new!
S.C. adjudged, contract, to which the wife is a stranger.
Yelv. 84. Cro. ' o

,Jac. 110. S. P. adjudged. "Whether such a recovery will be direct assets, or a devastavit forj
so much, vide head of Executors and Administrators,

R 11 R 360 ^°'* ^ battery or other personal tort done to the wife, they

Lit. R. 285.* must join (rf); and if the wife dies, the action dies with her.
Brownl. 205. Noy, 18. ||Hopper v. Reeve, 1 Moo. R. 407.|| Not for personal or other
wrongs done to them both, unless where they have a joint interest, and they have wrong in
respect thereof. March, 47. Cro. Car. 553. Jones, 440. Cro. Jac. 355. Roll. Rep. 108.
2 Mod. 66. 8 Mod. 200. 341. Vent. 328. 2 Vent. 29. Hardw. 166. Stile, 128. Cro.
Car. 175. Lev. 3. 2 Lev. 20. [l Wils. 224. 2 Stra. 726. In equity, the husband cannot
file a bill for a chose in action in right of the wife, without making her a party : if he do, and
it be dismissed, it will not conclude the wife ; and if he die before judgment or decree, she
cannot revive the suit. Clearke v. Lord Angier, 2 Freem. 160.] (rf) And the judgment must
be, that the baron and feme shall recover, notwithstanding the baron only is to have the
damages. Godb. 369.

Cro. Car. 89, But the baron may bring an action alone for the battery {e),

^°a ffi d ' *^^^^y^ng away and detaining of his wife, per quod solamen et con-
Cam. Scacc. sortium of his said wife amisit, because the action is founded upon
Cro. Jac. 538. the special damage done to himself, and will be no bar to another

action

(K) Where the Husband and Wife must join in Actions. 733

action brought by baron and feme, or by the feme after the death S. P. adjudged.

of the baron, for the same battery. sRoll.Abr.

•' 556. Jones,

440. Lit. Rep. 339. 2 Roll. R. 51. S. P. adjudged, (e) Where an action is brought for
words spoken of, or other tort done to the wife, and founded upon the special damage of the
husband, she must not join. Sid. 346. Lev. 140. Keb. Rep. 791. pi. 47. 2 Keb. R. 387.
pi. 65.

In trespass by baron and feme, they declared for a battery of Cro. Jac. 664-

the feme, et quod the defendant alia enormia eis intulit ; and Adjudged after

though objected, the feme cannot join for a wrong done to the affirmed in

baron, yet because the alia enormia, &c. was but form, and only error. Fide

in aggravation of damages, and altered not the substance of the Stile, 256. Sid.

declaration, it was adjudged for the plaintiffs. 225. Stile, 202.

So in trespass and false imprisonment by baron and feme, per Salk. 119. p],

quod negotia domestica of the husband remansei'unt infecta ad grave 12. Russel and

damnum ipsorum ; and it was objected, that this being laid as a \'°l^o]h^? ^'
• 1 1 111 11- 1 . . I 1 127. o.C.2Ld.

special damage to the husband, the action ought to have been Raym. 1051.

brought by him alone; but adjudged for the plaintiffs after Andr,245.and

verdict, being only matter in aggravation of damages. 2Stra.i094.

1 1 Mod. 264.]

{a) In trespass {h) by baron and feme for beating the feme (c), («) Sid. 387.

they may declare that it was ad damnum ipsorum, notwithstanding ^^]^^g^^ ; and
r .- u J r *u- <-• Ml • ^&.i<\ per cur. It

a leme covert can have no damages, tor this action will survive, could not be

otherwise. 2 Keb. 434. S. C. Palm. 339. 3 Mod. 120. So in debt upon^ bond made to
the feme dum sola; for the nonpayment to her dum sola was to her damage, as the nonpay-
ment since is to tiie damage of the baron. Stile, 134. adjudged; and said it is the usual way
of declaring in such case, (c) So for words spoken of the feme. March, 212. (Jb) Vide Cro.
Jac. 473. 644. Stile, 155. 2 Keb. 587.

But if in trover by baron and feme, they declare quod cumpos' Salk. 11 4. pi. 1.
sessional. Jueru7itf Sj-c. and that the defendant converted, ad damnum
ij)soru7n, this is naught after verdict; for the possession of the
wife is the possession of her husband, and so is the property ; so
that the conversion cannot be to the damage of the wife, but of
the husband only.

[Although an action cannot, regularly, be brought by or against ^., „..
a feme covert, yet the objection to it by the parties to the suit, it ^gr 3 -pg^^ p'^
hath in some cases been laid down, can be taken only in abate- 627. (d) But
ment (d) : therefore the feme (e), after she has been treated by a s^e Candell v.
plaintiff as a feme sole, may have process of execution for the n t^', ^ j"^™
costs in her own name, as sole, for the plaintiff is concluded ^^Q^d v. Jew-
from denying it. And husband and wife {g), who have impro- son, there
perly joined in an action, are not at liberty after verdict for the cited, where

defendant, to object to such impropriety, in order to discharge objection
,-t A c . -, V I JJ o was made by

themselves of costs.] the defendant

after verdict, and allowed. And to an action on a bond acknowledged by a feme covert,
coverture may be given in evidence on mm est factuMy for the instrument is merely void.
1 Ld. Raym. 313. 3 Burr. 1805. (t) Wortley v. Rayner, Dougl. 637. But the husband
cannot have execution without a scire facias. Ibid, (g) v. Helyers, Cro. Car. 175.

II In an action on a bond conditioned for payment by defendant Lunnv.Payne,
of an annuity to defendant's wife, if the breach is stated in non- 6 Taunt. 140.
payment to the plaintiff, it is ill, and judgment will be arrested. ||

(L) Where

73* BARON AND FEME.

(L) Where they must be jointly sued.

Co. Lit. 133. rpifJE husband is by law answerable for all actions for which;

2 H 6 V'Vwf ^'^ ^^^® stood attached at the time of the coverture ; and
infra Letter ^1^° ^'^^ ^H her torts and trespasses during coverture, in which
(M).308. cases the action must be joint against them both (d) ; for if she
(d) And there- alone were sued, it might be a means of making the husband's
fore if a man property liable, without giving him an opportunity of defending
against a feme himseli.

covert as sole, the husband may avoid it by writ of error, and may come in at any time and
plead it; but for this vide 17 Ass. pi. 17. Stile, 254. 280. 2 Roll. R. 53. 22 H. 6. 31.

3 Term R, 631. and tit. Error and Abatement.

For this vide If goods come to a feme covert by trover, the action may
R il Ah^B^* ^® brought against the husband and wife, but the conversion
pi. 7! Yelv! niust be laid only in the husband, because the wife cannot
166. Noy, 79. convert goods to her own use ; and the action is brought against

Leon. 312. both, because both were concerned in the trespass of taking
Cro. Car. 494. .u^^
254. Roll. Abr. ""^™*

348., where it was laid quod ad usum proprium, or ad usum suum converterunt ; for this must
-be intended to the use of both, and not of the husband only. Vent. 33. \\Vide 2 Saund. 47 e.
(5th edit.)l| [This point is settled as laid down in the text. 1 Salk. 114. Andr. 245.] la
debt upon a devastavit against baron and feme executrix, it shall not be laid quod devastavc'
runt; for a ferae covert cannot waste. 2 Lev. 145.

Keyworth V. || However, it is now determined that a declaration against

A fiR4 "^ husband and wife, charging that they converted to their own use,

is good after verdict ; for the verdict does not proceed upon the

acquisition of property by the defendants, but the deprivation of

property in the plaintiff, and the conversion may have been by

destruction.

Morris v. Nor- In an action against husband and wife for a debt due from

folk, 1 Taunt, the wife before marriage, if the declaration allege a promise by

^^*' the wife during the coverture to pay it, this is error, for she is

incapable of making a promise.

Stone V. And a declaration stating, that the husband was indebted to

iMo'^'i26 the plaintiff for money lent to the wife at her request, is bad;

7 Taunt. 432. since, without a request by the husband, there can be no debt

due from hini.H
2 Lev. 65. and An action on the case was brought against baron and feme,

note by the re- fQj. retaining and keeping the servant of the plaintiff, and judg-
porter, no no- ^ y. ^ ^ ° ' ' j o

tice was taken ^^nt accordingly.

that a feme covert may not make a retainer or contract ; but perhaps the receiving and keep-
ing the servant without any contract is a trespass of which a feme covert may be guilty. Qu.

17 E. 4. 7. If a lease for life or years be made to baron and feme, reserv-

sH 4 i^R 11 i"g *'^"^ (^)» ^" action of debt for rent arrear may be brought
Abr. 348. against both, for this is for the advantage of the wife,

(a) But an assumpsit lies not against baron and feme on a promise made by the wife during
coverture; for quoad the wife it is void. Palm. 313. ||See 1 Taunt. 212.j| But if a feme
covert takes up goods from a tradesman, affirming herself to be a feme sole, quaere, if this be
not such an injurious taking as will subject the husband and wife to an action, though neither
can be charged on the contract ? |llf a feme sole trader is sued in the courts of the city of
London, the husband must be joined for conformity. Beard ▼. Webb, 2 Bos. & Pull. 95 1|

[It

(L) Where they must be jointly sued. 735

[It would be error to join the wife in a declaration for words Swithen v.
spoken by the husband o«/y, and such declaration would be bad ^^m"*'
either upon demurrer, or in arrest of judgment: two declarations *Y"*'227.
therefore for words, the one against husband and wife, the other
against husband only, cannot be consolidated.]

If an action be brouijht against the husband and wife, and the For this vifc
wife be arrested, she shall be discharged upon common bail; for ^^; Baum
nobody can be supposed to undertake for a wife who hath no /gw h^\
property of her own. may reverse an

outlawry, see tit. Oullawry.

II And this, although the debt is contracted before marriage; PrUchett v.
the courts however, will not relieve her if she has wilfully and Cross, 2 H.
malajide represented herself to the plaintiff as a feme sole; but Black. 1 7. Wa-
they will if the plaintiff when he gave the credit knew she was ^^" ^- ^'^^^i
a feme covert. PittTThomp.'

son, 1 East, 16. Crookes v. Fry, 1 Barn. & A. 165. Collins v. Rowed, 1 New R. 54. Prit-
chard v. Cowlam, 2 Marsh. 40. Pannell v. Taylor, 1 Turn. & R. 100. Harvey v. Cooke,
5 Barn. & A. 747. HoUoway v. Lee, 2 Moo. 211. Carlisle v. Starr, 9 Price, 161. Though
separated by divorce a mensd et thoro, she cannot be held to bail, or sued as a feme sole.
3 Bro. & B. 92. 3 Barn. & C. 291.

The wife of an attorney is not entitled to be discharged if Robarts v. Ma-
arrested on mesne process jointly with her husband, for the son, i Taunt,
plaintiff was compelled to sue them jointly by common process, 254. De Gail-
and then the arrest follows of course ; and the Court of Com- '**" ^- ^^p^'»»
mon Pleas have refused to discharge wives of foreigners living g Bn,.fieid v.*
abroad, though without a separate maintenance. || Duchess de

Pienne, 2 New R. 580.

[The court will not discharge a wife taken in execution upon p. -. ..
a judgment obtained against her and her husband.] (a) 2 Stra! 1 167. *

Finch V. Duddin, Id. 1237. Langstaffv. Rain, 1 Wils. 149. Anon. 5 Wils. 124. |!(«) Unless
it appears that she has no separate property to discharge the debt, and this although her
husband has been discharged under the insolvent act. Sparkes v. Bell, 8 Barn. & C. 1.
2 Man. & Ry. 124.||

IjThe court could not discharge under the insolvent act Ex parte
1 G. 4. c. 1 19. a married woman in execution with her husband P^^°"'- »
for a debt contracted before marriage, since she was not capable of ^^g . ^^^ ggg
complying with the conditions of the act, by executing a warrant 6 Moo. 128.
of attorney and having a judgment entered up against her.

But by the 7 G. 4. c. 157. § 72. provision is made for dis- 7 G. 4. c. 57.
charging married women, and for their assigning all their § 72.
property real and personal, and for their executing a warrant of
attorney to confess judgment.

If a plaintiff sues a feme sole on a contract, and obtains inter- Cooper v.
locutory judgment against her before her marriage, he may pro- Hunchin,
ceed after her marriage without joining her husband hy scire ^indlee '
facias; and a capias ad satisfaciendum {oWow'mg the judgment s Maule & S.
against her alone is regular. 557.

It seems that if a married woman be taken in execution for a Chalk v. Dea-
debt contracted by her before her marriage, she cannot be dis- ^°"' f ^^°°*
charged, although the husband be in custody on mesne process ^ g^j ^ p^n
for the same suit ; at all events, the granting or refusing such 220.
discharge is in the discretion of the court. ||

COq

736

Gordon v.
Halpen, Ca.
temp. Hardw.
101.

Clark V. Nor-
ris, 1 H.Black.
235.

Russell V. Bu-
chanan,
6 Price R. 139.

Br. Baronet
Feme, p. 66.
Co. Lit. 133 a.
1 Roll. R. 400.
Moor, 85.

1 Bulstr. 140.
sBulstr 188.

2 Vern. 104.

BARON AND FEME.

[On a motion that the wife may have leave to plead separately
from her husband, it appeared that her estate was settled upon
her, and that the settlement had been confirmed in the House of
Lords to be for her separate maintenance, but the estate wasi
made liable to answer all actions brought against the husband'
on her account : it was suggested, in support of the motion, that;
this was a fictitious demand in the plaintiff set up by connivance!
of the husband, and that he would let judgment go by default,!
and so share with the plaintiff in what should be recovered. Buti
j)er Cur. We cannot allow you to sever in pleading: your best
way will be to plead in the name of husband and wife ; and if
the husband should disavow, and that be contrary to the order
of the House of Lords, you will know how to enforce that order ;
but we can do nothing in it.

If the husband enter an appearance for himself only, where
he is sued with his wife, this is not such an irregularity as will
authorize the plaintiff to sign judgment without demanding a
plea.]

II But where the attorney for the defendant who was sued jointly
with his wife for a debt due from her du7}i sola, appeared on his
undertaking, and pleaded for the husband only ; it was held that
the plaintiff might appear for the wife according to the statute,
and treat the husband's plea as a nullity, and sign judgment. ||

(M) Where a Wife shall be considered as a Feme Sole;'
[and herein of her separate Estate.]

A HUSBAND who hath abjured the realm, or is banished (a),-
is thereby civiliter mortwis ; and being disabled to sue or be
sued in right of his wife, she must be considered as a feme sole;
for it would be unreasonable that she should be remediless on
her part, and equally hard upon those who had any demand on
her \b\ that not being able to have any redress from the husband,
they should not have any against her.

[(a") Though

the banishment be only for a limited time. Sparrow v. Carruthers, cited in 1 Term R. 7.]
||Carroll v. Blencow, 4 Espln. Ca. 27.; and see an/t.|| {b) In assumpsit, the defendant
proved that she was married, and her husband alive in France: the plaintiff had judgment;
upon which, as a verdict against evidence, she moved for a new trial; but it was denied ; 'oi^ AH
it shall be intended, that she was divorced: besides, the husband is an alien enemy; and i^i Vl
that case, why is not his wife chargeable as a feme sole ? Comb. 402. Salk. 1 16. 646. Ld.
Raym. 147. jjSee Kay v. Duchess de Pienne, 3 Camp. 123. De Gaillon v. L'Aigle, 1 Bos. &
Pull. 35. II [In equity, if the husband is out of the jurisdiction of the court, though not an
exile, Dubois v. Hole, 2 Vern. 613.; or if he cannot be found, Bell v. Commissary Hyde, Pr.
Ch, 528., the wife may be compelled to answer separately.]|| Her joining as co-plaintiff or
co-defendant with her husband, will not prejudice a future claim by her as to her separate
estate. 1 Sim. & Stu. 185. I Jac. & W. 665.|1

10 Mod. 6. But By the custom in London, if a feme covert trades by herself in

for this see tit. ^ trade with which her husband does not intermeddle, she may
Ctutoms of 1 1 1 f 1

London and ^"^ ^'^d be sued as a feme sole.

Leon. 131. Lit. Rep. 31. Hetl. 9. 2 Brownl. 128. Mod. 26. 1 Show. 183. [But the
custom is confined to suits in the city courts : she cannot sue alone in the superior courts,
upon a cause of action accruing during the coverture, even though she be discovert at the
time of commencing the suit. Candell v. Shaw, 4 Term R. 361.; Hand when sued in the

city

(M) Where a Wife sJuill be considered as a Feme sole, (Jr. 737

city courts, the husband must be joined for conformity. Beard v. Webb, 2 Bos. & Pull.
93.|i That she may be a bankrupt, see tit. Bankrupt (A). By a settlement before mar-
riage, the husband may put his wife in a situation to carry on a separate trade ; and if he do
not intermeddle therewith, the stock in trade will be exempt from his debts ; and the wife will
be solely entitled to the increase and produce. Jarman v. WooUoton, 3 Term R. 628., and
Haselinton v. Gill, there cited.]

[In tlie case of a divorce a mensa et tlioro^ of which alimony is Ringstead v.
a consequent, the wife, it seems, becomes solely responsible ^^^^ ^"A^'
to creditors («) : and so in the case of a voluntary parting, and a Baiikrunt °*
separate maintenance allowed her by the husband; for as soon Laws, 32. Bar-
as she acquireth a will, and an interest distinct from, and inde- well v.
pendent on her husband, the disability of coverture is supposed Brookes, /i.
to cease. It hath therefore been determined by the Court of podnitz ^ ^'
K. B., though it by no means appears to be settled (6), that a 1 Term R. 5.
woman so separated and with such maintenance, may contract See conl. Hat-
and be sued alone for any personal demand. And the liability S j " ^'ni t
of her being sued alone must necessarily infer her capacity of j^ \qiq. Lean
being sole plaintiff against those with whom she may contract, v. Schutz, Id.
Her power too, in such circumstances, over her real property at 11 95. [(a) But
law, hath lately been asserted to a very considerable extent (c) : "°' where ah-
for it hath been holden, that a wife who had a copyhold estate gj ^^,, „^_ '
to her separate use, and lived separate from her husband, could denteUtc: the
surrender the same without her husband, he having, upon the fim^l ™"st be
separation, covenanted to join in all necessary conveyance of E'^f'^^"^?*''- .
such estates, and to such uses as she should appoint. 5 Term R. 579!

See too the observations of the court in that case, {b) Vide 6 Term R. 604. J] But it is
now settled, that a woman living separate from her husband with a separate maintenance can-
not be sued alone. Marshall v.Rutton, 8 Term R. 547., nor though she be divorced h vieiisd et
thoro. Lewis v. Lee, 3 Barn. & C. 291. Hookham v. Chambers, 5 Bro. & B. 92. Fairthome
V, Blaquicre, 6 Maule & S. 7.5.|| (c) Compton v. CoUinson, 1 H. Black. 534. The adequacy
of the settlement, or the circumstances of the husband at the time of making it, are points
which have not yet been discussed. Such a settlement, indeed, with a covenant by the trustees
to indemnify the husband against the wife's debts, hath been holden to be good against creditors
prior to tlie time of making it, for the covenant is a valuable consideration. Stephens v. Olive,
2 Bro. Ch. R. 90. ; and King v. Brewer, there cited, as decided by Lord Loughborough at
Chelmsford assizes 1776. ||Worrall v. Jacob, 3 Meriv. 256.1| But without such covenant the
husband is discharged from the wife's debts ; for, as to him, the reason of introducing it, is,
that he may be protected against the costs he may incur by being sued for those debts. Angier
v. Angier, Gilb Eq. Rep. 1 52. But if the operation of the covenant be, as stated in the case
of Stephens v. Olive, it would follow, that any agreement between husband and wife, securing
her a separate maintenance, without such covenant, may be set aside by creditors ; unless it
could be shewn that the conduct of the husband had been so harsh and cruel, as to afford the
wife a sufficient ground for a sentence of alimony in the spiritual court, if the wife had sued
him in such court ; under which circumstance, it seems, a court of equity will sustain a con-
veyance by the husband of part of his estate, as a separate maintenance for his wife, even
against the cliiims of creditors. Hobbs v. WaW, July 1786, Fonbl. Notes on Eq. Tr. 102.
ijNunn v. Ladbrooke, 8 Term R. 521. Where the husband secures an annuity to the wife as
a separate maintenance, if it is in arrear the court will decree payment of the arrears, but
they will not decree an appropriation of a sum to secure future payments. Cooke v. Wiggins,
10 Ves. 191.11

But it is in a court of equity, where a feme covert is usually,
and where perhaps only she can properly be, considered as a
feme sole ; it being competent to that court to act upon her
property in the hands of her trustees, and therefore to treat her
as having interests and obligations distinct from those of her
husband. If, therefore, she claims any rights in opposition to

Vol. I. 3 B those

738

BARON AND FEME.

(fl)Pr.Ch.329.
lb) 2 Atk. 50.
2 Eq. Ca. Abr.
66. {c) But a
separate an-
swer put in
without !>uch
order may be
suppressed as
irregularly
filed. iCh.R.
C8. But see
aP.Wms.STl^
where allowed.
(</) 3 Atk. 478.
{e) 2 Ves. 452,

those clivimed by her husband, or if she lives separate from
him (a), or disapproves the defence he wishes her to make (6),
she may, in equity, obtain an order to defend a suit separately (c).
If a husband is plaintiff in a suit (rf), and makes bis wife a
defendant, he is considered as thereby renouncing his marital
right over her, and she is allowed to answer separately without
an order of the court for the purpose. And as she may defend
a suit instituted against her by her husband, so she may institute
a suit against him : but the bill must be exhibited in her

name by her next friend (e), though she may defend without sucfer
protection. And the court will not permit ,a bill to be filed
by any one without her consent, (g)

(g) Pre. Ch. 326. If a manied woman obstinately refuseth to join with heri
husband, she may be compelled to make a separate defence ; and for that purpose an order!
may be obtained that process may issne against her separately. 1 Ch.Ca. 296. It should be
observed, however, that though a woman may be proceeded against without her husband, yet!
the court cannot make a personal decree against her for the payment of a debt ; all they ca^
do is, to call forth her personal property in the handn of trustees, and to direct the application
of it. I Bro. Ch. R. 16. 2 Atk. 6«.

11 With respect to the mode of constituting a separate pro-
vision for a married woman, whenever it appears from the nature
of the transaction, as in the instance of a settlement in con-
templation of marriage where the husband is a party, or from
the context of the instrument limiting the property to the wife,
that she was intended to have it to her sole use, a court of
equity will carry this intention into effect ; and if no trustees
are named the husband will be considered a trustee for her.

Thus where the husband signed a paper by which he agreed
that the wife should enjoy and receive the profits of a certain
property, those words were held to imply a separate use to the
wife, iind to create a trust in the husband for her.

So also Lord Uardivicke said that technical words were not
ley, 3 Atk. 399. necessary, and held that the word "livelihood," was sufficient
to show the intention of the donor, to give property to the wife's
sole and separate use.

So a direction that the trustee should not be troubled to see
to the application of the sum payable, but that tbe receipt of
the married woman should be a sufficient discharge to him, wafe
held by Lord Alvanley sufficient to entitle the wife to the
dividends as her separate property ; and a direction that the
money was to be paid *' into her proper hands," has been hel^
to have the same effect.

And so also a bequest of bond and mortgage debts to be
delivered up to the married woman, " whenever she shoul^
" demand or require the same." J

So also a legacy for her own use and at her own disposal. |
222. See Beable v. Dodd, 1 Term R. 1 93. Horseman v. Abbey, 1 Ja(.

Tyrrell v.
Hope, 2 Atk.
558.

Darley v. Dar-

Leev.Prieaux,
3 Bro. C. C.

382. Hartley
v.Hurle,5Ves.
540. ; and see
18 Ves. 434.

Dixon v. 01-
mius, 2 Cox R
414.

Prichard v.
Ames, 1 Turn. & R.
& Walk. 381.

Dakins v. Be- But the intention to deprive the husband of any benefit

resford, 1 Ch. from the property must be clear. Thus a devise in trust

■ to sell, and out of the produce " to purchase in the trustee's

" name an annuity of 80/. for the life of the wife of D., and

« to

(M) Where a Wife shall he considered as a Feme sole, S^x, 739

" to pay the same to her and her assigns," was not held to
exchide the husband's right though living apart from his wife.

Nor will a direction " to pay to her to and for her use," have Jacobs v.
that effect ; nor a legacy to the woman to her cruon use and benefit. ^ Madd' 376
sBro. Ch.Ca. 383.; and see 4Madd.409. 5Madd. 491. sVes. 166. sVes. 517.

But a legacy to a married woman " for her own use and at Prichard v.
" her own disposal," vests in her as separate estate. Ames, i Turn.

^ ^ &R. 222.

And so a bequest to a woman of a fund, with the interest Adamson v.

thereon, to be vested in trustees, the income arising therefrom to Armytage,

be for her sole use and benefit, vests the capital for her separate Coop^283^*
use. Ij

The general grounds upon which equity allows a wife to in- (a) 2 Ves. 452.

slitute a suit against her husband, are, where any thing is given ^^'" " "° *™*"

to her separate use (a) ; or the husband refuseth to perform ^j jj^p

marriage-articles {b) ; or articles for a separate maintenance (c) ; husband is

or where the wife {d\ having been deserted by her husband, hath, considered as

during his absence, acquired by her labour a separate property, » trustee for

of which he hath plundered her. And it will decree a specific Wms.sie.

performance of articles of separation {e) at the suit of the wife, And where a

|as far as regards payment of the maintenance, || though the legacy was

husband offer to take her back again, if it appears that a S'^en to a

i6ni6 covert
perpetual separation was intended by the parties : but not so, ^jj,}^ ^ direc-

where the separation is merely temporary {g), or there hath tion " that her

been a subsequent cohabitation. (A) Nor is it any answer to such " receipt

a suit, that the wife hath been guilty even of adultery, [i) How- " should be a

ever, in most cases, where a wife comes into equity to sup- "charge to the

port her possession independent on her husband, it is her merit "executors," it

which entitles her to relief; and therefore the court will not was holden to

decree maintenance (^ ) where there is full proof of elopement be equivalent to

111. tllG t6SicltOr s

and adultery. saying, "that

" it should be to her separate use." Lee v. Prieaux, 5 Bro. Chan. R. 581. (A) 2 Vern. 493.
(c) Gilb. Eq. R. 152. (rf) l Atk. 278. {e) 5 Bro. Chan. R. 614. (g) 1 Ves. 17., and 5 Atk.
547. \\Fide 3 Ves. 352. 1 1 Ves 532. 2 Roper, 298.|| (A) Fletcher v. Fletcher, cited in 3 Bro.
Chan. R. 619. (i) 3 P. Wms. S69., and Blount v. Winter, reported in 3 P. Wms. 276. Cox's
edition, (k) 2 Atk. 96. \\Scd vide Seagrave v. Seagrave, 13 Ves. 439. Jee v. Thurlow,
2 Barn. & C. 547.|1

II Whether the wife can dispose absolutely of her provision Hyde v. Price,
settled on her a? a separate maintenance, does not appear finally 3 Ves. 437.
settled. Where a sum of stock was settled in trust to permit ^*|lP'^^^^^^ ^'
the wife to receive the dividends for her maintenance and sup- 3 Madd.R. 79.
port, during the joint lives of herself and her husband, and she
joined with her husband in granting an annuity for a vaiuaMe
consideration out of the stock. Lord Alvanlej/ held that the
annuity could not be sustained against the wife, since she had
only a special trust on tne dividends of the stock, and no
dominion over them.

As the wife may dispose by will of savings from her separate Gage v.
estate limited to her sole use by a stranger, so also she may Lyster, 2 Bro.
dispose o^ savings from her separate maintenance; but if she oNJ ^r
make no disposition, and her husband be the survivor, he will 1 Roper, 205.'
be entitled to them as her administrator, subject to her separate Stephens v.

3 B 2 debts ;

740 BARON AND FEME.

Olive, 2 Bro. debts; and during the wife's life her savings will not be liable ti
C. C. 90. her husband's engiigernents, it' the settlement were made for

jlcob'^V* valuable consideration. H
Meriv. 256.

Finch's R. 145. Where the property of a wife is in the power of a court o'
2 P. Wins. 639. equity, it will not part with it, unless the husband make a pro
-sP. Wins. 12. per settlement, or the wife in court consent to his receiving it,
238 Ves -^"^^ '^ ^^^'^ gone so far (a) as to restrain him from proceeding
538. But this in the spiritual court for the wife's portion arising out of personal
equity is per- estate, because that court cannot oblige him to make an adequate
sonal to the provision on her. ||But the court will not restrain his recovering
Xe^dieTn her ^e property in a court of law.(^)ll

husband's lifetime, though she leave children, her husband is entitled to her persona
property, without making any provision for them. Scriven v. Tapley, Ambl. 599. Phipps v.
Earl of Anglesea, Fonbl. Notes on Eq. Tr. 89. [j Murray v. Lord Elibank, 10 Ves. 84.
Lloyd v. Williams, 1 Madd. R. 450.; sed vide 13 Ves. 7. If the wife dies after a decree for
carrying in proposals for a settlement to the Master's office, the right of the children attaches.
Rowe v. Jackson, 2 Dick. 604. And it has lately been decided that the wife's equity attaches
on her filing a bill for a settlement, and that the children are entitled if she afterwards die.
Steinmetz v. Halthin, 1 Glyn & Ja. 68. But the wife may in her lifetime waive the settle-
ment and defeat the childi-en. 10 Ves. 88. I Madd. 450. ; sed vide 2 Ves. 672. If she insist
on her equity against her husband's assignees, she cannot afterwards waive it in favour of her
husband. Barker v. Lea, 6 Madd. 330. If the wife is subject of a state by the law of whidi
the husband is entitled to the whole fund, the court will not require a settlement on her.
Sawyer v. Shute, 1 Anst. 65. Campbell v. French, 3 Ves. 32 1. Dues v. Smith, 1 Roper, 2G5.||
,(«) Pr. Ch. 548. 2 Atk. 420. Toth. 111. |j(6) 1 Ves. sen. 539. 2 Atk. 420. 10 Ves. 90.1|

2Atk.420. II The assignees of the husband under the bankrupt law, and

2 Ves.jun. under the insolvent acts, and also his general assignees for pay-

"^ y ■ ment of debts, stand in the same situation with respect to the ,

2 Madd. 16. wife as the husband himself; consequently if the wife's property

is a legal interest, which can be obtained without resorting to a
Court of Equity, they are entitled to it absolutely, but if the
property is equitable, they are bound to make a settlement on
the wife, in the same manner as the husband himself.
Salisbury v. And though it has been disputed, whether the assignee of the

Newton, husband, claiming by purchase from him, was compellable in j

^..^^w* equity to make a similar settlement, it seems now to be settled

v' Mason ^^^^^ ^^ cannot be in a better situation than the husband, anJ

iP.Wms!549. must make a settlement. However where the wife's equitable
Jewson V. property was only a life interest, the Vice Chancellor considered
^a"i!^*'"* ^^'^ ^ "^^ case, and refused to order a settlement against .a

Like v Bei-es- purchaser, for valuable consideration, of the hu.sband. j

ford, 3 Ves. 511. Pryor v. Hill, 4 Brown C. C. 139. Macaulay v. Phillips, 4 Ves. 19. FranfO
v. Franco, 4 Ves. 550. Elliott v. Coruell, 5 Madd. 149.

1 Roper B. & It seems doubtful whether the wife is entitled to a provision

^- ^'1* out of a trust term belonging to her as against a purchaser.

3 P. Wms. II. The wife's equity for a settlement will be defeated by payment
8 Ves. 206. or transfer of the funds to the husband, by the trustee or party
FiT^k ^ ^" whose controul they are, before any proceedings are instituted

10 Ves. 90. respecting the property, and such payment or transfer may p
lawfully made before proceedings had, but not afterwards.

lawfully made before proceedings
Carr v. Easta- If the wife be an adulteress living apart from her husbandj a
brooke, 4 Ves. court of equity will not interfere upon her application for a

settlem<!!it

(M) Where a Wife shall be considered as a Feme sole, S;c. 74.t

settlement out of her own choscs in action, neither will it order 146. Ball v.
then) to be paid to the husband ; not to the wife because she is Montjiomery,
unworthy of the court's notice, nor to the husband because he sVes.jun.igi.
does not maintain her, in respect of which duty only the law
gives to him her fortune, [j

The wife's consent to the payment of money to her husband (a), (a) 2 Bro.
though she be not personally present, being resident abroad, may ^'^''^"i^^''^ ^^^'
be given, and acted upon ; but it cannot, by the rules of the (-Jjf^. Ca 237.
court in such case, be dispensed with {b), if the sum exceed one (c) 2 Bro.
hundred guineas; nor will the court part with the property, even Chan.Ca. 66S.
with such consent, unless there be an affidavit both by husband ^Ves.jun. ss.
and wife that it is not settled, (c) \l Ex'j^lle

Higham, 2 Ves. 579., Lord Hardwicke appears to have refused to order the whole of the wife'^
fortune to be paid to the husband though the wife was in court, and desired it might. See
also Blackwood v. Morris, cited in Ca. temp. Talb. 4.5. to the same effect. But in Willetts v.
Cay, 2 Atk. 67., the Master of the Rolls is reported to have ordered the wife's whole fortune
to be paid to the husband, though insolvent, the wife being in court, and giving her consent.
As to part of her fortune, if she will persist in requiring it to be paid to her husband, the court
must comply with her request. Dimmock v. Atkinson, 3 Bro. Chan. Ca. 197. With the con-
sent of the wife money left in trust for the wife and her heirs to be laid out in land, ordered
to be paid to the husband without being invested in land. Pearson v. Brercton, 3 Atk. 71.
Stock standing in the names of trustees under a settlement, the dividends to be paid to the
wife, or to such uses as she should from time to time during coverture appoint, the principal
to be transferred after her death to the husband ; ordered, upon her consent, to be paid,
though no appointment to the husband. Clarke v. Pister, 26th March 1778, cited in 5 Bro.
Chan. R. 568. So a legacy given to a wife for her sole use, with a power of appointment by
will, and in default of appointment to her executors; ordered, upon her consent, to be paid
to her husband. Newman v. Cartony, 24th April llll. Ibid. So of money settled in like
manner. Ellis v. Atkinson, 3 Bro. Chan. R. 565. ||As to examination of the wife where she
is abroad, see 1 Ves. & B. 507. 2 Ves. sen. 60. 2 Bro. C. C e-oS. 3 Ves. 521. When the
fund is under 200/. it vill be paid out to the husband on the joint petition of hu.sband and
wife. El worthy v. Wickstead, 1 Jac. & W. 69-11

II The court will not allow the wife to waive her equity by giv- EdHiondsv.

ing her consent in court to a payment to her husband, where the Townsend,

.sum is unascertained at the time, the Vice-Chancellor observing ' Anst. 93.

in one case, that although she might not think 500/. the proper ^^^hfoft'^'

subject of a settlement, she might think differently of 600/. g Ves. 178.
Woollands v. Croucher, 12 Ves. 174. Jernegan v. Baxter, 6 Madd. 32. Godber v. Laurie,
10 Price R. 152.

And where the fund is reversionary, whether it be vested or Woollands v.
contingent, it seems now settled that the consent of the wife ^'"""'^'^p.'"',
cannot be taken to give it up to the husband. Sir W. Grant "'^[oberts
observed, in fVoollands v. Croucher, " The ordinary occasion 3 Madd. 384.
" for taking the consent is where the husband applies to have Wade v.
" paid to him money that belongs presently and immediately to Saunder^
" the wife. Her equity is not to prevent his receipt of it (for g^g ^^.^
" it belongs to him), but to have a settlement; and the court m/t- Butler v.
" requires her consent to the payment to him without a settle- Duncombe,
** ment; but in this instance the object is not to bar her equity j^ Vern.762.
" to have a settlement, but to bar her right to survivorship, ^ Damiani
" for upon his death it belongs to her entirely : she is giving 2 Jac. & W.
" up not her equity only but her entire right by survivorship; ''58.; and sec
*' that is not the case in which the court takes her consent." Roper, c. 6. §2.

And if the fund has been settled and vested in trustees for the Richard v.
benefit of the wife, the court will not authorize her departine Chambers and

3 B 3 with

742

BARON AND FEME.

Seaman v. with it to any person, though she should consent on examination

V. Duill, jjj nature of a fine at law.ll

loVes. 580. .

Lee V. Muggeridge, 10 Ves. 580.; and see 1 Sim. & S'fu. 365. 2 Jac. & W. ^56

And a woman, having a separate estate, rhay pass it without
an examination in court ; and she will be bound to a specific
performance, unless there be any proof of fraud or undue influ-
ence on the part of the husband. Lord Hardnaicke (a) indeed
seems to have thought, that the power of a feme covert to dispose
of her separate estate must be confined to such part of it as was
personal ; for that of her real estate she could make no disposition
during her coverture, unless by fine, or unless she had, before
marriage, reserved to herself such right by way of trust, or of ai
power over an use; and doubted whether a court of equitV;
would carry into execution a bare agreement to the prejudice ob
the heir at law. But this doubt is now done away (^); for iti '
hath been since determined, that a court of equity will compel
the heir to make a conveyance Vo the party in whose favour such
an agreement was made. And in all those cases where a feme
covert hath such power (c), she may exercise it without joining
her trustees, unless their joining is made necessary.
S29. Acton V. White, 1 Sim. & Stu. 429.||

Allen V. Pap-
worth, I Ves.
16?. Pybus V.
Smith, 3 Bro.
Chan. R.340.
a) Peacock v.
Monk, 2 Ves.
191.

(i) W^right V.
Cadogan,
6 Bro. P. C.
156 Rippon
V. Daw ding,
Ambl. 565.
(c) Grigby v.
Cox, 1 Ves.
517. llEssexv.
Atkins, 14 Ves.
547. Glyn
V Baster,
1 Youns & J,

Fettiplace v.
Gorges, 1 Ves
jun. 46. 5 Bro
C.C. 8. Rich
v. Cockell,
9 Ves. 369.
Sturges V.
Corp, 13 Ves.
190.: but see

11 And with respect to personal estate it is now settled, that
where it is actually given or settled, or agreed to be given or
settled, to the separate use of a married woman, she may dispose
of it as a feme sole, to the full extent of her interest, although
no particular form to do so is prescribed in the instrument for
the purpose; and the wife's power is the same, whether the pro-
perty settled to her separate use is in possession or in reversion. |[

Whistler v. Newman, 4 Ves. 129. As to what is a good execution of the power where it is
confined to appointments of the wife by deed or vnll, see Sugd. on Powers. ; tm

If a feme covert, having separate property, borrows moneyf ^
and executes a bond, or enters into a bond conjointly with her
husband, as a security for his debts, this will give a foundation
to demand the money out of her separate estate ; and her deck
rations may in such case be read in evidence against her.
Tenant, 1 Bro. Chan. R. 16. It hath been holden, too, that the separate property may 1
applied to the discharge of a bond given by her before marriage. In this case it must 1
observed, that two bills were filed ; the first against the wife only, in respect of her separate
property, which was dismissed ; the plaintiff then sued out writs against husband and wife
but the husband absconding, so that he could not be served, the plaintiff proceeded to out-
lawry, and then filed a second bill against the wife only. Briscoe v. Kennedy, at the Roll
21st July 1762 ; cited in 1 Bro. Chan. R. 18.

Heatley v.

Thomas,

15 Ves. 596.

Bulkin v.

Clarke,

17 Ves. 305.

Peacock v.
Monk, 2 Ves.
190. Norton
V. Turvill, 2 P,
Wms. 144.
Hulme V.

.:ii

II And so also where she accepted a bill for a milliner's debt, '
this was held to be a charge on her separate estate ; and it is
clear that where she either expressly or impliedly charges her
separate estate for necessaries, it will entitle her creditors to satis-
faction out of that fund.
Stuart V. Lord Kirkviall, 5 Madd. 387.

1 Ves.jun. 277- Whether without such a charge her general creditors can come
2 Ves. jun. 150. upon such separate estate, does not appear to be quite settled.
Lord T/mrlow, in Hulme v. Tenant, seems to have been of

opinion

8 Ves, 175.

(M) Where a Wife shall be cojisidered as a Feme sole, ^. 743

opinion they could, considering the liability to general engage- 9 Vcs- '^03.
menls as a necessary incident to separate estate, arising from the ^^^' ^',X^^',
capacity to contmct, which a separate estate confers ; but subse- ^g^* q„
quent authorities appear to limit the liability to cases where the Whetherthere
contract is entered into with the intention of charging her separate »s any distinc-
cstate, in which cases the court treats the charge as an appoint- \!°^.,^ }°e^u
ment by the wife of her separate estate. H geparai estate

whether the feme is living with her husband, or enjoying a separate maintenance. 2 Rx)per,
306.; and see /rf. 242., and Qu. whether the husband can throw the expense of her funeral
on her separate estate? Gregory v. Lockyer, 6 Madd. 90. I

If a wife charge her estate with the payment of her husband*s Huntin<»don v.
debts, or apply her separate estate to such purpose, and it do not Huntingdon,
appear to be intended by her as a gift to him, equity will decree 2 Vern.457.
the husband's assets to be applied in exoneration of her estate, p °"u **
or in repayment of the money advanced. Lge gVern.

604. Tate V. Austin, 1 P.Wras. 264. 2 Vern.689. Parteriche v. Pawlet, 2 Atk.384. Clinton
V, Hooper, 3 Bro. Chan. R. 201. [[Kinnoul v. Money, 3 Swanst. 217. n. Aguilar v. Aguilar,
5 Madd. R. 414, Pitt v. Pitt, 1 Turner R. 180.||

II With respect to the wife's right to redeem her mortgaged Bioad v.
estate, where the equity of redemption is not reserved to her ^"^"^ ' ^, gj "*
by the mortgage, it seems established that where the inort- liuscombe v,
gage-deed of the wife's property contains no limitations of the Hare, 6 Dow'»
estate beyond the security, and resei'ves the equity of redemption Parl.Ca. l.
to the husband alone, in that case the wife's original sole interest
will be preserved to her, the mere farm of the reservation of the
€(}uity of redemption being held insufficient of itself to alter the
prior title to the property; and the circumstance of the reservation
having been made otherwise than to the owner of the estate (the
wife), being presumed in law to have originated either in tlie in-
accuracy of the language of the clause, or in the mistake of the
person who prepared or engrossed the deed, neither of which
circumstances is allowed to prejudice the person having tlie
prior title.

But where the mortgage-deed contains a settlement of the Rowell v.
wife's estate, and the mortgage, or the form of reservation of the Walley,
equity of redemption, has nothing to do with the subsequent iChan.R.il«»
limitations of the property, but is perfectly distinct from them; \^^^ leVes,
as where the mortgage is tor a term of years, and the limitations 556. '1 Bligh
apply to the inheritance, in that case these limitations, through R. 104.
the medium of the wife's fine, will take effect, and the persons iKoper, IS6..
entitled to redeem will be not the wife under the prior title, but
the persons interested in the estate under the uses or limitations
contained in the mortgage-deed. }|

In equity gifts may be supported between husband and wife, sianning v.
though the law doth not allow the property to pass. Such gifts. Style, 3 P.
however, must not be prejudicial to creditors; nor must they be Win8-'354. and
of the whole of the husband's estate. Calmady/*

there cited. Bletsow v. Sawyer, 1 Venn. 245. Moor v. Freeman, Dunb. 205. Mitchell v.
Mitciiell, there cited. Beard v. Beard, 3 Atk. 72.] jjAs to what words coastitute a provisio*
to the wife's sepai-ate use, sec ai\ie, p. 738.||

3B 4

BARRATRY.

[ 744. ]

BARRATRY.

(A) Who shall be said to be a Barrator.

(B) Of the Form of the Proceedings against such air

Offender.

HAs to Barratry by the master of a ship or the sailors.
See Merchant and Merchandize, (I). Marine Insurance,
Vol. V. p. 462.11

(A) Who. shall be said to be a Barrator.

[Barrator, ac- A BARRATOR is described a person who is a common mover

cording to exciter, or maintainer of suits or quarrels, either in courts

Junius, IS viii- qj, [^ ^j^g country ; and this offence consisting in all kinds of dis-

a forensic turbances of the peace, and the spreading of false rumours and

term, taken calumnies, whereby discord and disquiet may grow among neigh-

from the Nor- bours, it is not material whether the suits commenced be in a

vians. The court of record or not: or whether those quarrels relate to a dis-
Icelandic and . j -vi r • ^

Scandinavian puted title oi possessions or not.

baratta; the Anglo-Norman, iare/ ; and the Italian, baraila, are all words signifying a quarrel,
or contention. Skene saith that barrators were simonists, so called from the Italian, barra-
tana, which signifieth corruption in a judge who giveth an unjust sentence for money.
And with us it may be observed, by stat. sE. 1. c. 33., barrators are forbidden to give
judgments.] Co. Lit. 568. a. b. 8 Co. 36. b. Hawk. P. C. bk. 1. c. 21. Dan. 725.
3 Inst. 175.

Roll. Abr. 335. But if a man prosecutes an infinite number of suits, which
But by Hawk, are his own suits, against others, yet he shall not be a barrator
91^ f ^ h ^y ^^^ ' ^^^ ^^ ^^^y ^^^ ^'ti^se and groundless, the defendants shall
suitslre merely have costs against him.

groundless, and brought only with a design to oppress the defendants, such a man may as pro-
perly be called a barrator, as if he had stirred up others to bring them. Vide 5 Mod. 98.
8 Co. 56 b. 2 Atk. 340.

Hawk. P. C. An attorney cannot be deemed a barrator in respect of his.
bk. 1. c. 21. maintaining another in a groundless action, to the commencing

whereof he was no way privy.
Hawk. P. C. Also it seems clear, that no man can be a barrator in respect

bk.i. c. 21. ^Q Qj^g ^^.j. Qjjjy ^^^j f^j. gygj.y indictment for such crime must

to one or two charge the defendant with being communis bairactator.

acts only. 2 Roll. Abr. 39.

{b) But this -^ feme covert cannot be indicted as a common barrator, {b)

opinion, Serjeant Hawkins says, is justly questionable ; for since a feme covert is as capable of

exciting quarrels, in frequent repetition whereof the notion of barratry seems to consist, as

if she were sole, why should she not as properly be indictable for it ? l Hawk. P.C. bk. 2.

c.21.

(B) Oi

(B) Of the Form of the Proceedings against such

Offender.

745

O general indictment, charging the defendant with being a Mod. 288.
common oppressor and disturber of the peace, and stirrer ^"^- 282. Cro.
up of strife among neighbours, is good, without adding the ^^^•^'^^'
words communis bairactator, which is a term of art appropriated
by the law to this purpose.

An indictment of barratry concluding cow^. ^onwam statuti is 2R0II. Abr.79.
good, though no statute be made directly against it, but only for ^'^' j^^- ^^'^'
the punishment of it, supposing it an offence at common law. sKeb. 409

410. Cro.Eliz.148. Hawk.P C. bk. 1. c!2l.

Also it hath been holden, that an indictment of this kind may
be good, without alleging the offence at any certain place : be-
cause, from the nature of the thing, consisting in the repetition
of several acts, it must be intended to have happened in several
places ; for which cause it is said, that a trial ought to be by a
jury from the body of the county.

It hath been resolved, that such an indictment is not good,
without concluding conL pacenty <§•«., for this is an essential part
of it.

It seemeth to be the settled practice at this day, not to suffer
the prosecutor to go on in the trial of an indictment of this kind,
without giving the defendant a note of the particular matters
which he intends to prove against him ; for otherwise it will be
impossible to prepare a defence against so general and uncertain
a charge, which may be proved by such a multiplicity of different
instances.

2Keb. 410.
Cro. Eliz. 195.
Latch, 194.
Palm. 450.,
and Roll. R.
295. cont.

Cro. Jac. 527.

5 Mod. 18.
iHawk.P.C.
bk. 1. c. 21.
2Atk.540.

T F they are common persons, the usual punishment is by fine

and imprisonment, and also by binding them to their good j Havyk p q
behaviour; but if they are of any profession relating to the law, bk. 1. c.21. *
they may be further punished by being disabled to practise for Whether jus-

the future. ^^^^^ o^ ^^^

peace as such
have cognizance of barratry without any other commission, by virtue of the 34 Ed. 3. 1. Qucercy
and vide Hawk. P.C. bk. 1. c. 21. Yclv. 46. 2 Roll. R. 151., and 2 Hawk. P. C. bk. 2. c. 8.
§ 39.

BASTARDY.

[ 716 ]
BASTARDY.

[According to \ LL well regulated governments have laid down and settled
L(\.Coke,° certain rules of propagation, as necessary to the very being

" bastardus of human society. Hence the solemnity of marriage was estab-
^atctmr a Hshed, not only as it prevents lewdness, but as a regulation,

" /Saffffapic ; without which there could be no distinction of families, and
" viz. meretrix, consequently no encouragement for industry, or foundation for
" seuconcubina, acquiring riches ; the children therefore that are born in these
quia procrea- gQ^ieties, and are to enjoy any privileges by the laws, must be
« ij.if,g ggy^ con- such as are born according to their rules of copulation ; for it is
"cubind". But absurd that the laws should give sanction and privilege to things
Sir HenrySpel- done contrary to the law, since that would take away thedistinc-
man, veroo j.j^^ ^^ right and wrong, lawful and unlawful ; and therefore
this derivation bastards by our law lie under several disabilities, [a)
and holds it to be a pure Saxon word, " baslart ;" viz. impure nattts, ut apud nos, upstart
dicitur homo novus. It is compounded of ia^e, vile, or ignoble; and jreopc, original. Others,
among whom is Dr. Johnson, derive it from the British, " bastaerd," or " bastardd," a word
compounded of bas, minime profundus, et tardd, germinatio, tar ddu, genninare, ptJlula/e^salirey
oriri utfontes, q. d. qui non a profunda et antiquxi, noMitate ortum deducit, sed qui nuper ortus
est ct germinavit. The word has, or base, it may be observed, is from the Persic, bast, busy,
Hickes deduceth it from the Islandic, btista ; and ar, or, and ord; \\z. principiuni, y/hence
busta-ord, or bustard, origine vel ortu non legitimus. Vide Davies, Cambro.^ Brit. Lexi-, Dii
Fresne's Gloss, Jun. EtymoU, and Hickes's Thes.] In ancient days bastardy was so disgrace-
ful, that to retain a bastard in a man's house was a reflection ; and the stain and reproach of
the parent's crime dwelt always upon the issue, so that he covXA not be admitted to a feudal
service ; and, therefore, when the bishops requested that our law should be changed in the
particular of Bastard Eignes, the statute says that all the barons and earls answered, una voce,
nolumus leges AnglitE vmtare. Merton, 9. 2 Inst. 95. [See notes, Co. Lit 244 b. 245 a..
(13th edit.) In Germany, and with us (who derive many of our customs and political opinions
from the Germans), bastardy was always a circumstance of ignominy. But in Spain, Italy,
and France, bastards were, in many respects, on an equal footing with legitimate children.
Butler*s Co. Lit. 243 b. note 2. But Sir H. Spelmao tells us (he doth not, indeed, refer to
any authority), that among the northern nations bastardy was no bar to succession ; and to
shew that it was not considered by them as ignominious, he cites the letter of the Conqueror
to Allan Count of Brittany, beginning with these words, '* Ego Witlelmus Rex, cognoment
bastardus.'* Eustathius asserts, that bastards were as honourable as legitimate children about
the time of the Trojan war; but the passage in the Iliad, 9 281., which he refers to as estab-
lishing this equality, evidently shews the contrary. Perhaps there was no time among any
civilised people when illegitimacy was not reputed a disgrace.] {a) He is qtum nuUiui filim,.
and can be heir to no man. Doct. & Stud. Dial. 1. c. 7. Inst. 123.

Under this head we shall consider,

(A) Who are Bastards.

11(B) Of their Capacities and Incapacities. Ij

concerning such Trial: And herein of general
and special Bastardy.

(D) Of Bastard Eigne and Mulier Puisne.

(E) How

(A) Who are Bastards. 747

(E) How Bastards are to be provided for: And

herein of tiie Duty and Power of Justices of
the Peace.

(F) Murdering Bastards, Hand concealing their Birth.ll

(A) Who are Bastards.

A LL persons born out of lawful matrimony are bastards by 47 u 3 14 b

the common law; but, by the civil law, those that are born 11 H. 4! si.
before marriage are legitimated by a subsequent marriage ; for, Bract, lib. 5.
by the civil law, all persons adopted into a man's family were ^?}'^^^' ^°^''
inheritable ; and the canonists have allowed of this notion, because rj 3ia(.j^ 'n^^
the subsequent marriage, they say, takes away the preceding 454, 455. By '
guilt, and shews a consent from the beginning. This difference the Roman
between the civil law may likewise be ascribed to the power Jaw, it should
which the father, by the Roman law, had over his children, be- thg^fatheT *
cause he was the author of their being, and had the care of their could legiti-
education ; if therefore a child should not be legitimated by a mate only his
subsequent marriage, the parent would not have had him under 'J natural ^^
his power ; for no man had a power over the udgo qucesiti ; and the offspring of
consequently the father would not have commanded that to which his concubine,
he gave being ; nor would the child have had the benefit of the who, by this
parent's education ; which would have cut a member from the fP''^^'^^„
commonwealth. w^e distin-

guished from the spurious brood of adultery, prostitution, and incest, to whom Justmian
reluctantly grants the necessary aliments of life. Firf^ Inst. 1. 1. 10. Pandect. 1.1. tit. 7.
Cod. 1.1. tit. 27. Noy, 74. 89. Heinec. Elem. Jur. de Legitimatione.] ||And the French
law, which admits the legitimation by subsequent marriage, makes the above distinction.
Code Civ. Art. 331. The legitimation is a privilege inseparably annexed to the marriage, so
that though both the parents and the children should waive or refuse it, the children never-
theless would be legitimate. But it holds in those cases only where at the time of the birth
of the children it was lawful for the parents to marry ; for if the father were married to
another woman at the time of the birth of the children, and afterwards his wife died, and he
married the mother of the child, the child would not be legitimated by the subsequent mar-
riage. Children thus legitimated are on an equal footing with the legitimate children ; and if
they die before the marriage of the parents still they are considered as legitimate, and transmit
their legitimacy to their issue. But whether they are considered legitimate only from the
time of the marriage of their parents, or whether their legitimacy by their parents* marriage
has a relation back to the time of the birth, is a point warmly disputed by the civilians and
canonists. The prevailing opinion seems to be that they are to be considered as legitimate to
all purposes, but those in which to consider them as such would operate to the detriment of
a third [lerson. Thus, if there be a natural-born child, and the father afterwards marries and
has sons, his wife dies, and he marries the woman by whom he had the natural child, it seems
to be the better opinion, that the child legitimated by the subsequent miu"riage does not
acquire the right of primogeniture over the sons of the first marriage. Co. Litt. 245 a.
note 1.; and see Pothier Trait^ du Contrit de Manage, part 5. c. 2. § 3. Vinnius Inst,
lib. 1. tit. 10. §13. De Legitimatione. Heinecc. Elem. Jur. Civ. p. 50. ; and tit. Marriage
and Divorce (D), Vol. V. p.314.|l

II The law of England not only does not allow children born Doe dem.
before marriage in England, to be rendered legitimate by the Birtwhistle v.
subsequent marriage of the parents ; but the Court of King's g^BaJ.,/ ^ c.
Bench has lately decided, that a Scotch child born before mar- 433,

riage,

748 BASTARDY.

riage, and rendered legitimate in Scotland by the subsequent
marriage of its parents there, is not inheritable to lands in
JSngla?id. The case was an ejectment brought on the demise of
John Bzriwhistle for recovery of lands in Yorkshire, and the jury
found a special verdict, from which it appeared that the lessor
of the plaintiff was undoubted heir as nephew of the person last
seised, if he could be held legitimate and capable of inheriting
lands in England. His father went to Scotland in 1790, and
cohabited with his mother ; and in 1 799, during such coha-
bitation, and the father and mother being both domiciled in
Scotland, the lessor was born, and in 1805 the parents married
in Scotland. The father died in 1810 in Scotland, seised of lands
there, to which the lessor was duly served heir according to the
Scotch law. The court held, after argument, that the lessor of
the plaintiff was not by such marriage of his parents after his birth,
rendered capable of inheriting lands in Erigland. Abbott C. J.,
saying, " We adopt the laws of all christian countries as to mar-
*' riage, but, it by no means follows, that we are to adopt all the
*' consequences of such marriages which are recognized in foreign
" countries ; it is sufficient if we admit all such consequences as

follow from a lawful marriage solemnized in this country

and Holroyd J. says, " the lex loci is alone applicable to the
" inheritance of real property ; and I take it, that legitimacy
** alone is not sufficient to make a person inherit socage lands,
" it must be legitimacy sidi modo ; the heir must be a child born
** after marriage."

Two cases had been previously decided in the House of Lords,
which were cited in support of the principle contended for in
the above case, that legitimacy is a personal status accompanying
the party wherever he goes, that it must be settled by the law
of the country where the marriage takes place, and that a
person cannot be legitimate in one country and illegitimate in
another : but these cases do not appear inconsistent with the
peculiar grounds on which the decision in Doe v. Vardill pro-
ceeded.

The first case was decided in the Court of Session in Scotland,
and the judgment was affirmed in the House of Lords in 1808.
5 Bam. & C. W. Sheddon of New York, married, according to the law of
'*^"*' America, a woman who had previously borne him two children,

William and Jane, and he died a few days afterwards, leaving an
estate in Ayrshire not disposed of by will or settlement ; such
marriage, according to the law of America, had not the effect of
rendering the children legitimate. It was held that the son
William could not inherit the Ayrshire estate, because his legiti-
macy or illegitimacy must be determined according to the laws
oi America where his parents were domiciled, and where himself
was born, and by the law of that country he was illegitimate.
^^- So also in the case of the Strathmore peerage, the son of Lord

Strathmore born in England before the marriage of his parents,,
who were domiciled in England^ was held not entitled to inherit
the Scotch peerage and estates, though his parents had subse-
quently

(A) JVho are Bastards.

749

quently solemnized a valid marriage in England. Lord Eldon
said he could discern no material difference between the case of
the then claimant and that of Sheddon v. Patrick ; and Lord
liedesdale says, " the law that attached to the claimant from his
" birth, was the law of England. I apprehend this child was
" born illegitimate according to the law of the country in which
" he was born, according to the condition of the mother of whom
" he was born, and according to the state of his father, who was
" at the time a person unquestionably domiciled in England." \\

All persons born within marriage are legitimate, unless there
is an apparent impossibility that they should be generated by the
husband ; for there is the strongest presumption that can be,
that they are legitimate, because the husband hath the power
and dominion over his wife, and therefore may by the law keep
her by force within the bounds of duty ; to which the canonists
have added a fanciful reason, to wit, the husband, having the
ownership of his wife, hath the property of the fruit of her
body, though planted by another: quicumque semen apposuit,
marito acquintur^ quia est dominus vetitris. Now the presump-
tion thus being that it is the husband's child, it must be destroyed
by contrary proof; and this negative, that it is not the husband's
child, is capable of no other proof than this only, that it must
be shewn impossible it should be the husband's child; if there-
fore the husband be proved castrate, the issue are bastards.

If the husband be under the age of fourteerr, the issue are [1H.6. 3. b.
bastards ; foj|\ before the age of puberty, generation is naturally Bro. Bastardy,
""possible. 7 Bt,^d"(Br

1.5.] 18 H. 6. .'51. 34. 29 Ass. 54. Bro. Bastardy, 36. Co. Lit. 244. [The age of puberty is
fixed by us, after the Roman law, at the age of fourteen. Before the time of Justinian,
puberty in males was judged o( ex habitu corporis : but that emperor thinking inspectionem
habitudinis corporis an indecent practice, fixed its commencement immediately upon the com-
pletion of the fourteenth year. Inst. lib. 1. tit. 22. But it is absurd to suppose that genera-
tion is physically impossible before the age of fourteen ; nor is it so concluded in the authority
to which the passage in the text refers. 1 H. 6. 3. b. What is there said (and it is, by the way,
merely the speech of counsel,) is, that in such case the issue shall be bastard, " pur ceo que ne
poit estre entendus par nul ley quefenfant deins eel agejjoit engend."]

If the husband be not within the four seas during the time Roll. Abr. 355.

that passeth between the conception and birth of the child, it is a Co. Lit. 244.

bastard. This was settled when the king's dominions extended Bract. 239.

to the four seas only ; for to pass and re-pass in the king's domi- J' the husband

nions was possible, without any knowledge or proof; but to pass Purina the

out of another's dominions into the king's, without some know- time the wife

ledge or proof of the matter, was supposed by the law not S°f^ with

possible ; for there is no such passage in a realm well governed f """' ^"^ 's*"^
' .^, ^ . . to o is no bastard.

Without examination. because the

husband was within the king's dominions. Roll. Abr. 328. Qucere. ||It is now settled that
the presumption of access or non-access at such a period as according to nature might render
the huslmnd the father of the child, or otherwise, is 10 be established by evidence like any
other fact. See The King v. Luffe, 8 East, 206. Opinions in Banbury Peerage Case, post, 751. ||

An order of two justices, which was aflirmed on appeal, ad- Carth. 469.
judged J. S. the reputed father of a bastard child; the order ^^^^- '^^- .
recited specially, that Mary, the wife of Jonathan Spence, mariner, ^^^^ been set-
was delivered of a male bastard child, and that it appeared to tied ever since

them

750 BASTARDY.

Pendrel*9 case, them Upon oath of, Sfc. that Jonathan Spence^ her husband, was
in 5 G. 2., that ;,^ j.|^g king's service at Car<//z in Spain, and not within the king
ofbein^outof ^^ England's dominions, at the time when the said child was be-
the kingdom, gotten or born ; and because it did not appear that the husband
but also every was absent all the time, as well as at the time of conception and

other kind of ^^le child's being born, the order was quashed,
evidence tend- o '■

to prove the impossibility, or even improbability, of the husband's being the father, is admis-
sible. 2 Stra. 925. ||Bull N. P. 1 1,3 a.]] S P. Wms. 36 5. 1 Black. Com. 4 57. Lomax v.
Holden, 2 Stra. 940. Rex v. Inhabitants of Bedall, Id. 1076. Ca. temp. Hardw. .'579. ; and
Andr. 8. S. C. Goodright v. Saul, 4 Term R. 356. Rex v. Inhabitants of Lubbenhani, Id,
251.] ||See the resolutions in the Banbury Peerage Case, and the report of the Gardner
Peerage Case, post.\\

liBut it is not necessary that the husband should be absent
during the whole time of geetation, in order to render the child
illegitimate, if he be absent so long that, according to the course
of nature, he could not be the father.
The King v. An order of bastardy removed uito the King's Bench by cer^

Luffe, 8 East, ticnariy stated, that it appeared to the justices, on the oath of
ii^East"]f3^2^ ^"^^ Taylor as otherwise, that her husband had been beyond
i2East'55o! seas, and that she had not seen him or had access to him from
Head v.' Head, the 9th o^ April ISO*, till the 29th of June 1806; and that it
1 Sim. &Stu. appeared that the said Mary Taylor, on the 1 3th oi July 1806,
R^^i'-s S "th ^^^ delivered of a male bastard child likely to become chargeable
V. Chamber- '^ ^^ parish of B., and that H. Luffe did beget the said child
laj-ne, de- on the said Mary Taylor ; and the justices upon examination of
cided in the the cause and circumstances of the premises, as well as upon
Co^Tt^TF °^^^ °^ ^^ ^^^^ Maty Taylor as otherwise, did thereby adjudge
terhury by Sir ^^ ^aid H. Luffe to be the reputed father, 8fc. Sfc. Three
W. Wynne objections were taken to the order: 1st, that the wife was ad-
1792. Appen- mitted to prove the nonaccess of her husband; 2dly, that the
chant's Gd ^'^^^^' being of a married woman, the justices had no jurisdiction
ner Peerage ^° make an order of filiation, unless the child appeared to have
Case. been actually chargeable; 3dly, that the nonaccess of the hus-

band was not proved during the whole time of the wife's preg-
nancy, which was necessary to bastardize the issue. Lord
Ellenborough C. J., after over-ruling the first objection, and
observing that the second resolved itself into the third, pro-
ceeded, in an elaborate judgment, to show that there was no
novelty (as had been urged) in the doctrine of admitting the
proof of nonaccess of the husband, living within the kingdom,
in order to rebut the presumption of legitimacy ; and his lord-
ship cited cases from the Year Books, 1 H. 6. and 10 and
18 Edw. 1., where this evidence had been admitted. " The
rule of law," says his lordship, " which has prevailed in these
" cases, is stabitur huic presumptioni donee probetur in contrariuni.
" Ut ecce, maritus probatur non conaibuisse aliquamdiu cum uxore,
" infirmitate vel alia causa ivipeditus, vel eiat in ea invalitudine
See the opi- " ut generare non possit. Bracton, p. 6. a. From all these autho-
nionsofthe « rities I think this conclusion may be drawn, that circum-
"Banburv"claim " Stances which shew a natural impossibility that the husband
of Peen^e, " should be the father of the child of which the wife is de-

<' livered,

(A) Who are Bastards. 75 1

" liveretl, whether arising from his being under the age of poti, Shelley

" puberty, or from liis labouring under disability occasioned ^ »

" by natural infirmity, or from the length of time elapsed ^^^^*-^8-
" since his death, are grounds on which the illegitimacy of the
" child may be founded." The order was confirmed.

It was held in one case not absolutely necessary to prove the Gootlright v.
nonaccess of the husband, where the circumstances of the case ^a"'. 4 Term
raised a strong presumption against the legitimacy of the child ; l^^ Ertk^^
as, for instance, where it was born during the notorious co- whowascoun-
habitation of the mother with another man, and was considered sel in this case,

by all the family as his child. I'^* stated that

•^ •' It was derided

on the ground of nonaccess being proved. See Gardner Peerage Case, Appendix, p. 468. ;
and see the case of Boughton v. Boughton. Id. 469.

In the celebrated case of the Banbury peerage, the judges, in
answer to questions put to them by the House, gave the following
unanimous answers : —

" The presumption of legitimacy, arising from the birth of a p f ?q8 *
" child during wedlock, the husband and wife not being proved Gardner Peer-
" to be impotent, and having opportunity of access to each age Case, by
" other during the period in which a child could be begotten M^. Le Mar-

" and born in the course of nature, may be rebutted by circum- ^v*"*^' Appen-
,, . , . ' •'. J dix, note h.,

" stances mducmg a contrary presumption. where a con-

cise and clear account is given from authentic sources of the various proceedings in this case,
and 1 Sim. & Stu. 153.

*' The fact of the birth of a child from a woman united to a
*' man by lawful wedlock, is generally, by the law of England^
" jjrimd facie evidence that such child is legitimate. Such
" jn'imd facie evidence of legitimacy may always be lawfully
" rebutted by satisfactory evidence that such access did not take
" place between the husband and wife, as by the laws of nature
*' is necessary, in order for the man in fact to be the father of
" the child. The physical fact of impotency, or of nonaccess,
*' or of nongenerating access, as the case may be, may always
" be lawfully proved by means of such legal evidence as is
** strictly admissible in every other case in which it is necessary,
*' by the law of England^ that a physical fact be proved.

" After proof given of such access of the husband and wife,
" by which, according to the laws of nature, he might be the
" father of a child, (by which is to be understood proof of
" sexual intercourse between them,) no evidence can be re-
" ceived, except it tend to falsify the proof that such inter- /^\ g^ ^^
" course had taken place, (a) Such proof must be regulated by the Gardner
" the same principles as are applicable to the establishment of Peerage Case,
« any other fact. P°*^-

" In every case where a child is born in lawful wedlock, the
** husband not being separated from his wife by a sentence of
" divorce, sexual intercourse is presumed to have taken place
" between the husband and wife; until that presumption is
" encountered by such evidence as proves, to the satisfaction of
" those who are to decide the question, that such sexual inter-
" course did not take place at any time, when by such inter-

" course

752 BASTARDY.

" course the husband could, according to the laws of nature, bi ■
" the father of such child.

" The presumption of legitimacy of a child born in lawfu
*' wedlock, the husband not being separated from his wife by i
" sentence of divorce, can be legally resisted only by evidence
*' of such facts or circumstances as are sufficient to prove, to the
** satisfaction of those who are to decide the question, that no
" sexual intercourse did take place between the husband and
** wife at any time, when by such intercourse the husband could^
** by the laws of nature, be the father of such child.

" Where the legitimacy of a child in such case is disputed,
*' on the ground that the husband was not the father of such
" child, the question to be left to the jury is, whether the
" husband was the father of such child; and the evidence to
" prove that he was not the father, must be of such facts and
" circumstances as are sufficient to prove, to the satisfaction of
" a juiy, that no sexual intercourse took place between the
" husband and wife at any time, when by such intercourse the
" husband could, by the laws of nature, be the father of such
« child." II
Roll. Abr. 358, If the marriage is made null by divorce, the issue is illegiti-
359, 360. mate ; as if the parties be divorced for pre-contract, consan-

guinity, affinity, or frigidity; for where the marriage is nullified,
it is a copulation without marriage, and consequently the issue
are bastards ; and it is the same by our law, whether they have
notice or not of the consanguinity, because we look no further
than the dissolution.
Roll. Abr. 357. If a man marry his cousin within the degrees, or his sister,
the issue got between them is not a bastard till there be a divorce ;
for though such a marriage be unlawful, yet it remains good till
sentence of divorce be pronounced, and consequently the issue
must be esteemed legitimate till such a dissolution.
5 Co. 98 b. If a man be divorced from one woman propter perpetuam gene*

Burie's case, randi impotentiam^ and then marry another, and have issue by
S C °Jenk R ^^^ second marriage, which continues without divorce, the issue
268. Noy, 72. are lawful ; for a man may be hahilis et inhabilis diversis tempo*
Moor, 225. ribus, and the second marriage is not avoided by any divorce,
pi. 366. S. C. ^^^ therefore stands good in law.
by the name ot "

Morris and Webber.

2 Roll. Abr. A bed-rid person marries a woman that is pregnant in his

353. Box- chamber, the woman is delivered twelve weeks after; the child

lisee s^ast adjudged a bastard, for the apparent impossibility of his being

193. 12 East, the father of it.

550.11

Roll. Abr. 558. If a woman marry grossment ensient it is the child of thei
husband; for, when they testify their consent by a public mar-'
riage before the birth of the child, it is a public acknowledgment
that the child is his ; for at that time the child is one with the
mother, and therefore in taking the mother he takes the child
with her.

7 Co. 41. If a man is married within the age of consent, and when he

comes

(A) Who arc Bastards. '^53

comes to that age he is divorced by reason of his dissent from Kenn's case,
the marriage, and then he marries again, and hath issue, and Roll. Abr. 360.
dies; it cannot be averred that he cohabited with his first wife to ^^°- J'''<=- '^s.
avoid the divorce and disannul the second marriage, and bas- Godolph. 484.
tardize the issue, for the ecclesiastical courts are proper judges
in this case; and when by sentence they have declared the
marriage void, it cannot belong to the temporal courts to enquire,
into and set aside their sentence, for that is to take away their
jurisdiction; the same law if the first wife had been divorced
causa prcEContractus.

If there be a separation for adultery a mensa et thoro, the issue 1 1 H. 7. 27 a.
born afterwards are presumed j)rima facie not to be the husband's, '^"J'- ^^^- ^^^'
unless it appear upon proof that the husband after such separation ^Q[^\oi' „] -
did cohabit with his wife. 5 P.Wms. 275.'

[Where parliament dissolves a marriage for a cause subse- 1 Wooddes.

quent thereto, there is no necessary or general occasion for •'^94. In the

reputing the children illegitimate.] ^^^^ of adul-

t^ >r> & -J tery, a clause

is occasionally inserted for illegitimating children born after a particular time. See Martin's

Divorce Bill, 1 793.

li A. takes B. to wife, and has issue by her, and they are Roll. Abr. seo.
afterwards divorced, because they were within the age of consent '^ Co. 43 b.
at the time of marriage, and afterwards disagreed ; and then A.
takes D. to wife, by whom he hath issue, and dies ; upon the
suit of the issue of B. the ecclesiastical commissioners, upon a
commission directed to them, cannot enquire into the marriage
between A. and D. because they are dead ; for though a sentence
of divorce may be repealed, after the death of the parties, by
suit in the spiritual courts, yet no sentence of divorce can pass
there after the death of the parties ; for a divorce in the eccle-
siastical courts, after the death of the parties, can be only made
to bastardize the issue of that marriage, which being a thing that
concerns the inheritance, is properly cognizable in the temporal
courts; therefore a prohibition shall be granted to stop their
proceeding upon it.

As to the legitimation of children born after the death of the IIAlsop v.

husband, it is agreed, that the usual time of birth is nine solar „ ^i^^;'' ;, "'

II °i 1 ^ -^ II. 1 1 1 1 9- Roll.Abr,

months and ten days ; but it may be hastened or prolonged by 556. Godbolt

accident; as by hard usage, want of sustenance, ^c. ; because 231. Stile, 27 7.

I the nourishment of the child in the womb, depends on that of HCro.Jac.
the mother; so that a child hiith been allowed legitimate nine u^'" '^*^, ''•

I months and twenty days after the death ol the father ; but when ^q^^ j Qq^
the child was born eleven months after the death of the husband. Lit. 125 b,
and it was proved the husband could not enjoy his wife within a llwhcre he
month before his death, it was adjudged a bastard. Lo"d cS-c'I^'

rule, that nine months, or forty weeks, is the furthest legitimum tevipus allowed by law for a
child to be born, is too strict ; and that it seems to be the practice of the courts to consider
forty weeks merely as thqmore iisual time, and not to decline exercising a discretion of allow-
ing a longer space where the opinions of physicians, or the circumstances of the case, have

Incr Peerage Case, reported by Mr. Le Marchant

required. Sec the arguments in the Gardner Peerage Case, rei
28, where Mr. Margrave's note is considered, and Dr. Hunter

'1828, where Mr. Margrave's note is considered, and Dr. Hunter s opinion as to the perioii
|of gestation stated by Mr. Hargrave is much questioned.||

I Vol. I. 3 C A lewd

754. BASTARDY.

Palm. 9. A lewd woman after her husband's deatli married her adu -

Co. Lit. 8 a. terer, and within six months and a day after her first husband's
death had a child ; it was adjudged the first husband's, because 1: e
had the dominion of the woman at the time of her conception.
21 E. 3. 39. A wife marries immediately after her husband's death, an J

Co. Lit. 8 a. jjjjj.|^ ^ child nine months and eleven days after the death of h<ir
Abr.357. ' fi"*^^ husband; it was adjudged the second husband's, because it
l|See the case was born one day after the usual time, and the usual time is
of Forster v. the only measure to discern between them ; but if it be born ^t
C*'?^ Z47 "^^ the end of nine months and ten days, the father is doubtful, apd
But see Lord some have said, that the child may choose his father.
ICldon's observations on this case in the Gardner Peerage case, p. 286.|| But to prevent
this doubtfulness in heirs, and to hinder the wife from putting false children upon her die-
ceased husband, the law hath provided the writ de ventre inspiciendo for the husband's heir;
and if the wife be found with child, or suspected to be so, she must be removed to a castle,
and there safely kept till her delivery ; and by this writ the heir may take her away from her
second husband; but it lies not for the heir apparent, who hath no interest in the estate ia
the life of the ancestor. Co. Lit. 8. Roll. Abr. 357. This power of removing the relict pf
the ancestor to a castle, in case she really is, or is suspected to be with child, seems only to
be used where the woman continues unmarried ; for if she takes another husband, and tie
sheriff returns that he caused her to be searched by such women, and found her to be ensient,
the course seems to be this, viz. for the husband to enter into recognizance that she shall not
remove from the house where they then inhabit ; after which a writ is to be awarded to tke
sheriff to cause her to be viewed every day till her delivery by two at least of the said women
returned by him, and that three or more of them shall be present with her at her delivei^'.
Cro. Jac. GS5. Moo. 523. Co. Lit. 8. Cro. Eliz. 566. Reg. 227. [This writ is grantable to
tenant in tail. jEj: parte Akcough, 2 P. Wms. 591. Mosel. 391. It is now granted to a
devisee, whether for life, or in tail, or in fee. Ex parte Bateman, at the Rolls, 10th Dec,
1784. Ejc parte Bellett, at the Rolls, 20th Dec. 1786. Ex parte Wallop, 4 Bro.Chan. R.90.
In Mosely a case o^ personal estate is cited, in which the then Master of the Rolls, in coii«
formity to the reason of the common law, directed that the Master should appoint tijo
matrons to inspect a woman. Mos.391.]

Gardner Peer- || Captain Alan Hide Gardner and M. E. his wife, cohabited
age Case, re- ^g ^^^^ ^^^ ^jfg fj-om their marriage till the month of January
&°nit Le^Mar- 1802. On the 1 0th of that month, Captain G. being on board
chant, Esq. the ship which he commanded at Portsmouth^ Mrs. G. joined
See the Pre- him, and remained till the 30th of January^ when she quitted
[eamS re-""^ ^^^ ^^"P ^^ ^^' ^^^^^'^- ^^ '^^ 7th of February following, Cap-
marks on the *^"^ Gardner sailed for the West Indies^ (having never been
law respecting on shore since Mrs. G.'s departure,) and did not return to
adulterine bas- England till the 11th of July following. Mrs. G. returned
tardy, and the ^^ London on quitting the ship, and immediately commenceil
several cases ^"^ resumed an adulterous intercourse with Mr. H. Jadis, who,
as to the law in about a week from her return, was seen by her servant
o( Scotland with her in her bed-room, and on another occasion, in beJ
^^^ J'.'""''^^ with her. She kept up a constant intercourse with him du-
subiect and ^^"g ^^^^' husband's absence. Before Captain G.'s return i i
for a clear and July, Mrs. G. declared herself with child, and expressed ai
authentic re- expectation of being delivered on Captain G.'s return in tl
port of the summer. In the autumn she appeared advanced in pregnane,
in the Banbury Captain G. treated her like a woman in that condition, and ex-
Peerage Case, pressed anxiety as to her health and as to the child likely to to
born. Having been overturned in a carriage, the family ajx-
thecary was called in and attended her. Mrs. G. tried io
advance her delivery by driving over the stones in her carriag ,

telliri:

(A) Who are Bastards. 755

telling her servant that her medical attendant advised it; and
she also told her that the child would not be born in time to
be Captain G.'s child, and that Mr. Jadis must be its father.
She was delivered of a son on the 8th o^ December 1802, when
Captain G., by her contrivance, was not in the house, and did
not sleep there that night. Mrs. G. told her husband's brother
she had had a dropsy, and sent her servant to the family apo-
thecary to say she was put to bed, but he must keep it a secret.
The child was conveyed by the midwife, by Mrs. G.'s orders,
to a woman to nurse; Mrs. G. visited it, and ordered it to be
christened Henry Fenton, after Mr. J. her paramour. In Jtme
1803, Captain G. having discovered his wife's intercourse with
Mr. Ji, ceased to cohabit with her, and she went to live with
Mr. J. They resided together, at Baysiscater^ and in Hertford-
shire, and had a child with them called Henry Jadis. In 1814'
the boy was placed at Weslmi?ister school by the name of Heniy
Fenton Jadis, and Mr. J. visited him, paid his bills, and treated
him as his son. Captain Gardner, in 1804-, recovered damages
against Mr. J. in an action for adultery, and obtained a divorce
a mensd et thoro ; and in 1805 the marriage was dissolved by act
of parliament. In 1808, Captain G.'s father dying, he became
Lord Gardner. In 1809 he married again, and in 1810 had a
son, Alan Legge Gardner, on whom, by the death of his father
in 1815, the barony of Gardfier descended, supposing Henty
Fenton Gardner (the son of which Mrs. G. was delivered in
December 1802) to be illegitimate. Alan Legge Gardner, during
his minority (in 1824), petitioned the king to declare his right
to the barony by letters patent, or to order his name to be
entered on the parliament roll as a minor peer, or to recognize
his right in such other way as to his majesty should seem proper.
On the report of the attorney-general, the petition was referred
to the House of Lords; antl in 1825 it came on to be heard
before a committee of privileges. The above facts were proved
in evidence ; and various physicians and accoucheurs were also
examined on the part of the petitioner, and on the part of Henry
Fenton Gardner, (who put in his claim to the barony,) as to the
possibility of H. F. Gardner being the son of Captain, afterwards
Lord Gardner. On the part of the petitioner, five eminent me-
dical practitioners stated they considered it impossible that
Henry Fenton G., born on the 8th of December, could be the fruit
of intercourse between Captain G. and his wife on the 30th of
Jamiaiy, or even on the 7th of Febniary, the former period
being forty-four weeks and three days, and the latter forty-three
weeks and four days. They were also clearly of opinion, that
he could not have been begotten by Captain Gardna- after the
11th of July, when he returned to England. These witnesses
agreed that forty weeks after conception was the latest time for
the labour of a woman to commence, so that the woman and child
could live; though the time was sometimes less. On the part of
Ilcmy Fenton Gardner a number of medical witnesses were called,
who agreed that forty weeks or 280 days was the ordinary period
S C 2 of

756

(rt) It is to bo
observed that
the witnesses
for the peti-
tioner pro-
fessed to
found their
judgment as
to the period
of gestation
on cases in
their own

BASTARDY.

of gestation ; but most of them professed to have known instance

of that period being exceeded, and in some instances protractec

to 306 and 311 days; and they conceived that a child born on

the 8th of December might be begotten on the 30th of January i «

and some midwives and other women were called, who spoke td

children being born (who lived), according to their calculations,

at ten and even eleven months from their conception. («) The

Committee resolved, that Alan Legge Gardner had made good

his claim to the barony, thereby establishing the illegitimacy

, , J of Henry Fetitan Gardner or Jadis. ||

knowledge, -^ "

where the time of conception was ascertained with tolerable accuracy; and they agreed
that in those instances they never knew the forty weeks or 280 days exceeded. None of the
medical witnesses for Henry Fenton Gardner professed to state a case of that period being
exceeded where the date of conception was exactly known ; they only adduced instances ol
married women cohabiting with their husbands, where the computation was made either from
the woman's last menstruation, or from the time when the expected menstruation was first
missed, or from the sensations experienced on the quickening of the child. Any of these
criteria, according to the admissions of the witnesses themselves must be fallible; the concep-
tion may take place either the day after the last menstruation, or not till twenty seven
days after, or at any time in the interval. The return of the menses is often obstructed by
cold and other causes, and is almost invariably suspended while the woman is suckling ; and
conception sometimes takes place during the suspension; and the period of quickening
varies in different women to the extent of several weeks, besides that the sensations indicating
it are liable to be mistaken. The only female witness who, in speaking to a gestation exceed-
ing nine calendar months (ten months and five days) professed to date her conception from a
definite day, viz. the departure of her husband to sea, was proved to be mistaken as to the
date. See the Evidence in Mr. Le Marchant's Report. Notwithstanding, however, the clear
and strong testimony of the medical witnesses for the petitioner, and the unsatisfactoi^^
nature of the evidence opposed to it, the decision is perhaps hardly to be deemed a recogni-
tion of the doctrine of the King v. Luffe, strongly supported by Lord Erskine in the Banbury
Peerage Case, and which would seem the result of the Judges' opinions in that case, viz., that
in order to bastardize a child born in wedlock, the evidence must shew a natural impossiiilitt/
of the husband being the father. Taking the evidence of the physicians, together with that
as to Lady G's. adultery, and the circumstances attending the birth and education of the
child, the case seems to proceed upon the broader rule, that a strong moral improbability may
be sufficient to rebut the presumption of legitimacy arising from birth in wedlock. Had Lady
G's. life been unimpeached, could the committee, on the evidence of the physicians alone, have
pronounced the child illegitimate? And yet, according to the opinions in the Banbury Case,
they were to be satisfied, " that no sexual intercourse did take place between the husband
and wife at any time when by such intercourse the husband could by the laws of nature be
the father of the child." Lord Redesdale, Lord Eldon, and Lord Ellcvhorough appear in this
case to have considered strong moral improbability sufficient; and Lord C. Lyndhurst in
Morris v. Davis (MS. Rep. ; and see 5 Russell, S. C.) was of the same opinion, and impugned
Lord Erskine\ contrary doctrine — and considered moral improbability as the rule of the
Banbury Peerage Case.

Doct. & Stud.
Dial. 1. c. 7.
Inst. 123.
Co. Lit. 3 b.
6 Co. 6.5.
llRiver's rase,
1 Atk.410.
Wilkinson v.
Adam, 1 Ves.
& Bea. 422.
452.11

li(B) Of the Capacities and Incapacities of Bastards.
TTE is quasi nulhisjilius, and can be heir to no man.

But though he cannot inherit any ancestor, yet when he ham
gotten a name of reputation, he may purchase by it ; for all
surnames were originally acquired by reputation. Geoi'ge Shelli
conveyed lands to the use of himself, the remainder to Geori
Shelly his son ; whereas in truth George was born of one B.
matrimony of one C, yet was reputed the son of George, aifl
educated by him ; though the boy was but six years old, it w;
ruled that he should take the remainder; for having got

reputatic i

(B) Of the Capacities and Incapacities of Bastards. 757

reputation the name of George Shelly^ these words are a certain
designation of the person to make the remainder. But if a
remainder be limited to the eldest issue of J. S., whether legiti-
mate or illegitimate, J. S. hath issue a bastard, he shall not take
this remainder ; for it is not vested in J. S. as it was in the other
case, but is in contingency, and the certain time is not defined
when this contingency shall happen : for the bastard, at his birth,
does not acquire the reputation of being the issue of J. S. ,• and
since the bastard, when first in being, cannot take by virtue of
this limitation, he can never take it ; for he cannot be understood
to be the person designed and marked out by these words, if^,
after his birth, it depends on the uncertainty of popular re-
putation, whether he should take the remainder or not ; and such
a designation of the person as contains no certainty in itself, or
no relation to any other certain matter that may reduce it to
certainty, is a void limitation.

But where a remainder is limited to the eldest son o{ Jane 5., j^^ g^ rg
whether legitimate or illegitimate, and she hath issue a bastard, Metham v.
he shall take this remainder, because he acquires the denomina- Duke of De-
tion of her issue, by being born of her body; and so it was von, 1 P.Wms.
never uncertain who was designed by this remainder. Lj Maccl^s^

field inclined against such a remainder j and see Mr. Hargrave's observations upon this case.
Co. Lit. 5 b. note 1.]

II But an illegitimate child cannot claim a share under a devise Cartwright v.

to children generally, though the will was strong in his favour Vawdry,5Ves.
\ ■ V ^- J-> b o 53Q . and see

by implication. j Tu,n. & R.

SIO. eMadd. 292.

Nor although the testator knew that there were no legitimate ^ ,„
children. ° g^^^ ^- ,.

43.; and see 17 Ves. 531. 18 Ves. 147. 288

Unless it appear by extrinsic evidence that he had acquired „ .
the reputation of a child at the time of the will. || Kinnersley

1 Ves. & B. 4G9.; see 2 Meriv.419. 1 Madd, 430. 12 Price 470k-

If parents are married, and afterwards divorced, this gives the 6 Co. 65.
issue the reputation of children ; and so doth, a subsequent mar- Hughes's Abr.
riage of the parents. ^^^'

If the mother dispose of all her lands holden in chivalry, to Dyer, 345.
her bastard son, she is not within the 32 H. 8. c. 1. which for- Co. Lit. 123 b.
bids the owners to dispose of above two thirds of such land for f *^'^"' ^^''•
preferment of children ; for children in any law must be in-
tended such as are lawfully begotten.

If a man, in consideration of natural affection and love, Dyer, 574.
covenants to stand seised to the use of a bastard, this is not Andr. 79.
good ; for he is not de sanguine pain's ; but it is said, that a t}^^' '^'
woman may give lands in frank marriage with her bastard, be- • '
cause he is of the blood of the mother ; but he hath no father,
but from reputation only.

A court of equity will not supply the want of a surrender of a Preced.Chan.
copyhold estate in favour of a bastard, as it will for a legitimate 4'5.
child.

3 C 3 [If

758

BASTARDY.

sP.Wms. 33.
1 Wooddes,
397, 398.

[If a bastard, possessed of personal estate dies intestate, and
without wife or children, the crown is entitled to such property,
includintr leases or terms of years. The king, or other imme-
diate lord of the fee, is also entitled to a real estate of inherit-
ance, of which a bastard dies seised, without having devised it,
and without leaving issue. This is the result of a bastard's
being supposed to have no other relations, no heirs, or next of
kin, except those arising from his own contract of marriage,
namely, his wife and progeny. But the rigorous exertion of this
prerogative would, in many obvious cases, carry the appearance
of great hardship. It is usual, therefore, to make over the royal
prerogative to some one ; not indeed quite unconditionally and
gratuitously, but with the reservation of a tenth, or otlier small
proportion of the value, both of real and personal estate.

Bastards are within the stat. 26 G. 3. c. 33., which requireth
the consent of parents or guardians to the marriage of persons
under age ; for the rule of millius Jilius applies only to cases of
inheritance.]

II And the consent of the natural mother is not sufficient to
satisfy the statute ; therefore the only legal consent in such a case
must be by a guardian duly appointed.

c. 33. is now repealed by 4 G. 4. c. 75., the existing marriage act, and under this act a mar-
riage of a minor without consent is not void. Rex v. Birmingham, 8 Barn. & C. 55.

The mother of a bastard child, within the age of nurture, has
a right to the custody of the child in preference to the father,
though from his circumstances he may be better able to educate
it; and the court ordered it to be restored to the mother on
habeas corpus, though it was not alleged that the custody was
obtained unfairly.

And if the custody is obtained by the father by fraud or force,
it is clear that the court will order it to be restored to the
mother, without prejudice to the question of guardianship, which

1 Term R. 96.

Priestley v.
Hughes,
1 1 East R. 1
The 26 G. 2.

Ex parte
Anne Knee,
1 New R. 148.
Sed vide
S East, 224. n.

Rex v. Sope,
5 Term R.
278. Rex V.
Hopkins,

7 East R. 579. belongs to the Court of Chancery. ||

Roll. Abr. 361. "OASTARDY, in relation to the several manners of its trial,
Mm. tit. Ras- jg distinguished into general and special bastardy. General

bastardy is the bastardy tried by the bishop, which in its notion
contains two things. Istly, It should not be a bastard made
legitimate by a subsequent marriage. 2dh% That it should be a
point collateral to the original cause of action.

Bro. tit. Bas-
tardy, 97.
That where
general bas-
tardy is
pleaded, the
court, though

the parties concUide to the country, must direct a writ to the bishop. Rast. Ent. 105. The
issue on general bastardy runs in this manner: PrcedicL J. R. dicit quod J. S. est bastardiis, ct
7iatnsfult opud C. in com. j)r(rd. in dioces. de W., ct hoc paralus est verificare viis et modis qnibus
convenit, acprord curia regis hie consideraverit ; et prcedict. J. S. dicit qnod ipse objectione prcedict.
prcecludi non debet, quia dicit quod ipse est Icgitimus et non bastardus ; et hoc paratus est verificare
ubi, et quomodo, et proiit curia regis hie considcrabit, ct i)>'(i:dict. J. R. similiter. Rast. Ent. 29.
279. 289.

Formerly

!■

759

Formerly bastards had a way in such issues to trick themselves Roll Abr. 361.
into legitimation, for they used to bring feigned actions, and get
suborned witnesses before the bishop to prove their legitimation,
and then got the certificate returned of record, and after that
their legitimation could never be contested ; for being returned
of record, as a point adjudged by its proper judges, and re-
maining among the memorials of the court, all persons were
concluded by it: but this created great inconvenience, as is
taken notice of in the preamble of the 9 H. 6. c. 11., in the
case of several persons of quality ; for the evidence of the con-
trary parties concerned were never heard at the trial, and yet
their interest was concluded : to remedy this inconvenience, with-
out altering the rule of law, it was enacted, that before any
writ to the bishop, there should be a proclamation made in the
same court, and after that the issue should be certified into Chan-
cery, where proclamation should be made once in every month
for three months, and then the Chancellor should certify it to the
court where the plea depends, and afterwards it should be again
proclaimed in the same court, that all that are concerned may go
to the ordinary to make their allegations ; and without these
circumstances, any writ granted to the ordinary, and all pro-
ceedings thereupon, shall be utterly void.

If the ordinary certify or try bastardy without a writ from the Roll. Abr. sei*
king's temporal courts, it is void ; for the spiritual jurisdiction
within these kingdoms is derived from the king, and therefore it
must be exercised in the manner the king hath appointed ; for
it would be injurious if they should declare legitimation where
the rights of inheritance are so nearly concerned, without an ap-
parent necessity.

The certificate must be under the seal of the ordinary, and not Roll.Abr.5C2.
under the seal of the commissary only ; for the connnand is to
the bishop himself to certify; and therefore the execution of the
command must appear to be by the bishop in proper person.

If a man be certified bastard, this binds perpetually, though
the person so adjudged a bastard is not party to the action, tor
all persons are estopped to speak against the memorial of any ba's"ardy^'no"
judicatory (a); because the act of the public judicatory under person is
which any person lives, is his own act ; and were they not thus oound by a

bound, there mi^jht be contradiction in certificates. verdict, unless

' f he was party

to the original suit ; for no man can be bound by a judicatory from whence tlicrc lies an
appeal, unless he be capable of that appeal ; for it would be a contradiction, where there isfui
appeal supposed, to conclude a person that is incapable of bringing his appeal ; as all persons
who are not parties to the suit are; and therefore on a certificate, which is the highest act of
that sort of judgment, every stranger is concluded, but not by verdict, because an attaint lies
for him that is party to the original action. Roll. Abr. 362.

If a man be certified bastard, that doth not bind a stranger Roll. Abr.. -62.
till returned of record, because it is no judicial act till recorded I'tl'e tenant
in the place appointed to record such transactions ; nor doth it bastard ^aml
bind the party to the action till judgment thereon; because if he jj^^ though
avoid the action, he avoids all the consequences of the action ; the writ abate,
and dierefore if the defendant be certified bastard by the or- yet the ccrti-

3 0 4 dinary,

Ibid.
(a) But in the
trial of special

760

BASTARDY.

Roll.Abr.362.

Bro. 76.
4 E. 3. 59.
Rast. 289.

fication stands dinary, yet if the plaintiff be nonsuit, and they cannot go on |<
m uli force, ^.^jj^]^ fjjg bishop's certificate never appears of record, and ther:
fore is not bindinff.

If a man be certified muliet; no man is estopped to bastardise
him, for though he may be a mulier by the spiritual law,
he may be a bastard by our law ; and therefore any man, not-
withstanding the certificate, may plead the issue of speci]
bastardy.

When a writ is awarded to the bishop to certify bastardy, day
is given in court to attend such certification, otherwise the par-
ties would be without day in court, in waiting for the bishop's
certificate, and this would create a discontinuance, and therf-
fore the parties must attend the day, and not expect that tlu
proceedings should be revived by resummons ; though some have
holden the contrary, because the bishop is judge, and so not
bound to a certain day.

Ne wiqiies acccniples in loyal matrimony is no plea but in dower \

Bro. Bastardy, and in appeal to bastardize any person, bastardy general or

^^ *• special must be pleaded ; for the matrimony is there to be

questioned, where there is a claim under the relation of wife,

but there is more than marriage in question in the point of

] 1 H. 4. 78.

Roll. Abr. 361.

legitimation.

Bro. 97.
Bro. 98.

27.
In

28 E. 3,
Bro. 97,

mortdancestor
the tenant
pleads bas-
tardy in the
demandant ;
this shall be
certified by the
bishop of the

The plea of bastardy may be tried by the bishop in actions
personal, as well as real.

If there be no bishop, the certificate must be made by the
guardian of the spiritualities, for he is to sustain the office m the
mean time.

In an assize the tenant makes bar as heir; the plaintiff says
the tenant is a bastard ; the tenant says, he is a mulier^ born at
London ; and prays a writ to the bishop of London ; the plaintiff*
says, that he was born at L. in Suriy, (the county also wherein
the lands lie,) and prays that it may be tried by assize; but this
could not be granted, because here bastardy was particularly
pleaded, and not left at large upon the issue ; but the certificate
in this case was directed to the bishop of Winchester^ within whose
diocese where jurisdiction Surry is, because where the place of birth is in dis-
the writ is pute, the trial must be in the place wiiere the land lies ; for

brought, where the place of birth is controverted, it is uncertain, and so

though the . , -f n i

demandant ^^ ^"6 same as if not alleged.

Bays he is a mulier, born in another diocese ; for he may bring his proofs and evidence to th| K

diocese where the writ is brought. Bro. Bastardy, 97. i V

In an assize the bishop certified directly, that the defendant
was a bastard, and it was indorsed* on the certificate, that ^., the
mother of the defendant, left her husband for seven years, in
which time the defendant was begotten by one i?., a priest, and
so a bastard ; but because the defendant was made a bastard in
the certificate, they gave no heed to the indorsement, as a thing)
foreign and immaterial. '

Special bastardy, which is always tried by a jury in the tem-
poral courts, is twofold : 1st, Where the bastardy is the gist ofi

art of the issue, (a) 2dly, Where!

those

Bro. Bastardy,
98.

(a) The issue
is in this
manner : 'Et
lircedkt, P.

the action, and the material pari

(D) Of Bastard Eigne, and Mulier Puisjie. 76I

those are bastards by the common law that are muliers by the didtquod
spiritual law, and such are those that are born before marriage, V^^dict. W.
whose parents afterwards intermarry. TumT^ere^^

non debet quia dicit quod ubi prcedict. W, per breve suuvi prcedict. pr<JBsupponit et asserit se
fuissc Jilium ct hccredem prced. T. idem W. natus fiiit extra omnia sponsalia et hoc paratus est
verificarc unde petit judicium si prced. W. utjilius et hceres prcedict. T. seu allerius cvjuscunque.,
SfC, versus euvi habere debeat. Et prcedict. W. dicit quod prcedict. T. patet suus habuit quondam
uxorem sibi desponsatam A, nomine de qua ipse natus fuit infrct sponsalia inter ipsum T. et A.
celebrat. et verificat. nnde petit judicium. So that when the party avers the birth within
espousals by way of reply, he doth not offer an issue, because that were to take an issue too
much at large; but it is necessary to set forth the manner of the birth, viz. of whom he was
born, that they may go to issue upon a particular matter; otherwise, he that takes this plea
would be put on the proof of an universal negative, which cannot be proved ; and then the-
party that objected the defect, must offer an issue in this manner : Et prcedict. P. dicit vt
prius quod prcedict. W. natus fuit extra omnia sponsalia et non infra sponsalia ut prcedict W.
tuj)erius allegavit et de hoc j)07iit se super patriavi et prcedict. W. similiter ideo, Sfc. Rast.
Ent. 387. Dyer, 97. pi. 51.

If a man receives any temporal damage by being called a Brownl. i.
bastard, and brings his action in the temporal courts, and the 5^ j }^^'
defendant justifies that the plaintiff is a bastard, this must be g^.^,! £jjjy ■
tried at common law, and not by writ to the bishop ; for other- 479. Co. Ent.
wise you suppose an action brought in a court which hath not a 39-
capacity to try the cause of action.

If it be found by an assize taken at large that a man is a Bro. Bastardy,
bastard, the temporal courts are judges of it, for the jury cannot ^7.
be estopped to speak truth, which may fall within their own
knowledge; and what they find becomes the record of the
temporal courts, and so within their conusance.

In an assize o^ moftdancestcn; one of the three points enquirable Fitz. Abr. I2v
is. Whether the demandant be heir to J. S., the ancestor ? in ^ Inst. 400.
which case. If the tenant pleads he is ready to hear the recog-
nizance of the assize (et hoc paratus est per assisam inquircre), he
cannot give in evidence that the demandant is a bastard, but he
ought to have pleaded the same; for if this were given in evi-
dence, and not pleaded, the spiritual court would be ousted of
their jurisdiction.

(D) Of Bastard Eigne, and Mulier Puisne,

\ MAN who hath issue a son by a woman before marriage, Lit. sect. 3&9,
and afterwards marries the same woman, and hath issue a ^°' ^*'- ^'^^'
second son born after marriage ; the first of these is termed in
law a bastard eigne, and the second a mulier. By the common
law, as hath been said, such bastard eigne is as incapable of in-
heriting, as if the father and mother had never married ; but yet
there is one case in which his issue was let into the succession,
and that was by the consent of the lord and person legitimate ;
as if upon the death of the ftxther the bastard eigne enters, and
the midier during his whole life never disturbs him, he cannot
upon the death of the bastard eigne enter upon his issue.

No man can bastardize another after his death, that was a 7Co.44.Jenk.
mulier by the laws of holy church, and who carried the reputa- y^o^^^^^g
tion of legitimate dunng his life ; for a mau must be bastardized c^. yj' 33*3^

762

BASTARDY.

Lit. sect. 399.
Co. Lit. 245.
(a) Though
this seems to
be the doctrine
of the old
books, yet
there is this
modern case :
An ejectment
was brought
by one Pride
against the
Earls of Bath
andMontaguej
Pride made
title as heir to
George Duke

by the rules of the civil or common law : by the rules of the
civil law, this person is by supposition legitimate; and if the
common law be made the judge, he cannot be bastardized; for
it is a rule of common law, that a personal defect dies with the
person, and cannot after his death be objected to his successor
that represents him (a) ; and this rule of law was taken from the
humanity of the ancients, who would not allow the calumny of
the dead ; as also from an important reason of convenience, for
pedigrees are often derived through several persons, concern-
ing whom there remains little knowledge or remembrance of
any thing, but only of their being; and therefore it were an easy
matter to throw on them the aspersion of bastardy by any forged
evidence, which cannot be confronted by opposite proof; and so
it is fit to limit a time in which all proofs of bastardy are to be
of Albemarle, disallowed,
proving himself the son of one who was brother to the duke, and that the duke died without
issue; the defendant gave evidence, that Duke George had issue Duke Christopher, who
conveyed to him; plaintiff gave evidence, that Duke Christopher was a bastard, begotten of
such a woman, who, at the time of her marriage with the said George Duke of Albemarle,
was married to another man, who was then, and is yet living : Upon which it was objected.
That since Duke George and this woman lived together as man and wife, and were now
dead, the plaintiff could not be admitted to bastardize the issue, who was dead also ; and
who, during his whole life, was reputed and taken to be the legitimate son of the duke, and
so styled by the duke himself in his deed of settlement, and in his will, his son and heir; et
quod justum non est aliquem post mortem facere bastardwn. The court held this true of such
a bastard as is meant by Littleton, in his case of bastard eigne and mulier puisne ; i. e. such a
bastard as is born before the espousals of a father and mother, who may afterwards marry ;
and said, the rule extended only to that case. Salk. 120. Pride v. Earls of Bath, &c
7 W. & M. 3 Lev. 410. S. C, who tells us, that though the evidence was admitted by Holt^
and Gil. Eyre, the only judges in court, the jury were not satisfied with it, and gave a verdict
for the Earl of Bath.

Co. Lit. 244.
Roll. Abr. 624.

Co. Lit. 244.
Hughes, 365.

Co. Lit. 244.

Co. Lit. 244.
8 Co. 101.
Sir Richard
Pexball's case.
Plowd. 372.

To exclude the mulia- from the inheritance, there must not
only be an uninterrupted possession of the bastard eigne during
his life, but a descent to his issue.

If he, bastard eigne , dies, leaving issue in ventre sa mere, and the
mulier enters, and then the son is born, the son of the bastard
eigne is for ever excluded, because there was no descent ; and so
our law in this disagrees with the civil law, which, for the benefit
of the infant, reputes a child in its mother's womb in the same
condition as if it were born.

If the bastard eig7ie enter, and die without issue, yet the lord
by escheat cannot claim it against the mtdier ; for there is no
descent cast to extinguish his right.

If the mulier enters into the land after the decease of the
bastard, before the heir of the bastard eigne^ yet he is barred ;
for the land is cast upon the issue of the bastard immediately
after his death, and die descent to him is made without any
entry, and consequently he is within the benefit of the rule.

If the mulier be an infant during the possession of the bastard
eigne, yet he is barred by the descent ; for though no laches can
be imputed to an infant, because, not being of the age of con-
sent, his permission cannot be taken for a consent, yet in such
cases where time is limited by the law for pleas and actions,
infants are included, unless specially excepted ; for here their per-
mission

(D) Of Bastard Eigne y and Mulier Puisne. 763

mission is taken for a consent, because they are supposed to
consent to the established law, to whicli they are obliged for pro- .
tection during minority ; and the law hath not thought fit to
except, because it is a public mischief in a very tender point,
for it might be any man's case, to suffer by the bastard of an
ancestor, and the law hath given the infants guardians to plead
by ; but it cannot revive the evidence of legitimation, which so
easily perishes with the life of the party.

If a man hath issue a son bastard eigtie^ and a daughter, being Co. Lit. 244.
mtdier puis7ie, and the daughter is married, the father dies, and 8 Co. 101.
the son enters, and dies seised ; this shall bar the mulier, for she
might have claimed by her husband ; the same law if the bastard
eigne enters, and enjoys peaceably during his life, while the
mtdier is imprisoned, or beyond sea, or of nonsane memory ; for
the constant and quiet possession of the bastard eigne, together
with the character he had, during life, of being legitimate, shall,
in a case of such nice consequence, outweigh, at a trial, any evi-
dence that can be brought to the contrary.

The descent of services, rents, or reversions expectant upon Co. Lit. 244.
estates-tail, or for life, whereon rents are reserved, shall bind 8 Co. 101.
the mtdier ; for the enjoyment of these equally suppose the cha-
racter of legitimate, as the possession of any corporal rights : but
such a descent would not drive the party that hath right to an
action ; for it is a contradiction in terms, that a man should be
dispossessed of a mere right.

If the bastard eigne die seised, and the son endow the wife, yet Co. Lit. 244.
the descent takes away the right o^ the mtilier ; the bastard eigne's 8 Co. 101.
entering into religion is such a descent as takes away the right of
the mulier.

Tenant in tail, the remainder in tail, the remainder in fee ; 29 E. 3. ss b.
tenant in tail hath issue bastard eigne and mulier puisne, and dies ; Hughes, 366.
the bastard entereth, and continueth his possession, and hath issue, *^o"« Abr. 625.
and dies ; the issue enters ; the mulier dies : he in remainder shall
have siformedon against the issue of the bastard, and the continu-
ance of the possession of the bastard shall not prejudice him ; for
the statute of Westm. 2. says, that the will of the donor manifestly
expressed in his gift must be observed : now the bastard cannot
bring himself within the intention of the donor ; for he is neither
the heir, nor a person begotten by a tenant in tail, since, in law,
he is the son of no man; and consequently the express words of
the statute exclude him from the inheritance, which set aside
the rules of common law in this case.

If a man hath issue bastard eigne and mulier puisne, the bastard Co. Lit 244.
in the life of the father dies, leaving issue, and then the father
dies, and the son of the bastard enters and dies seised, and it
descends to his issue, the descent shall bind the mulier ; for if
otherwise, it would be bastardizing the ancestor after one descent,
which is contrary to the rule.

If bastard eigne and mulier puisne daughters enter and occupy Co. Lit. 244.
in coparcenai-y, the law will not suppose the whole in the mtdier,
but by a more easy construction presume, that the mtdier admits

the

70if

BASTARDY.

Co. Lit. 245.

Co. Lit. 244.
20 E. 3.
Voucher, 129.
Hughes, 365.

the other into the inheritance : so if there be bastard eigne and
midier puisne^ and \.\\e miilier euXer to hunt or hawk, this doth
not disturb the bastard's possession ; for a man's intention dotii
always govern and denominate his actions; and in this case he
did not enter to claim.

If the bastard eigne enter after the decease of his father, and
the king seize the land for a contempt (whereby the profits only
are taken) without cause, and the bastard die, and the issue
petition, and be restored, he shall hold it against the midier ; for
when the king seiseth land without cause, he shall only hold it
as a substitute to the possessor.

The bastard being empleaded shall have his age, for the
dilatory plea must be determined before the pleas in chief can
come on ; so that the plea of infancy will stay the suit before
it can be enquired whether he is or is not a bastard : also he
shall be vouched as heir to the father, for qui sentit commodwn
sentire debet et ofitis.

(E) How Bastards are to be provided for : And herein
of the Duty and Power of Justices of the Peace.

"DY the 18 Eliz. c. 3. it is enacted, " that two justices of the
peace (a), whereof one to be of the quorum (6), in or next
" unto the limits where the parish church is, within which
" parish the bastard shall be born (c), upon examination of the
" cause and circumstances (rf), shall and may by their discretion
" take order, as well for the punishment of the mother, and
" reputed father of such bastard child {e), as also for the better
" relief of every such parish, in part or in all ; and shall and
" may likewise by like discretion take order (^) for the keeping
" of every such bastard child (//), by charging such mother or
'* reputed father with the payment of the money weekly (/), or
" other sustentation for the relief of such child, in such wise as
" they shall think meet and convenient ; and if, after the same
" order by them subscribed under their hands, any the said
" persons, viz. mother, or reputed father, upon notice thereof,
child has been " shall not for their part observe and perform the said order,
a charge to " that then every such party so making default, in not perform-
" ing the said order, to be committed to ward to the common
" gaol {/c\ there to remain without bail or mainprize, except he,
" she, or they shall put in sufficient surety to perform the said
" order, or else personally to appear at the next (/) general
" sessions of the peace to be held in that county where such
" order shall be taken (?k), and also to abide such order as the
" said justices of the peace (w), or the major part of them, then
" and there shall take in that behalf, if they then and there shall
" take any ; and that if at the said sessions the said justices shall
" take no other order, then to abide and perform the order
" before made, as is abovesaid."
Dalt. 44. If five justices make the order, it is good ; for the statute is not restrictive>
but requires two at least. 2 Salk. 477. pi. 18. H J.S. is adjudged the father of a bastard

child,

18 Eliz. c. 3.
(a) A single
justice may
bind to the
good beha-
viour him that
is charged or
suspected to
have begotten
a bastard child.
Lam. 122.
Crom. 196.
Dalt. 44.
But the two
justices cannot
make any
order pursuant
to this statute,
unless the

the parish
Comb. 39.
Vent 37. If
the two jus-
tices disagree,
so that they
make no
order, the two
justices of the
next division,
being of the
same county,
may make
the order

(E) How Bastards are to be provided for, S^c. 765

child, and by the order it appears that the examination of the woman was by one jus-
tice only, though the ordering part thereof is said to be made by two, the court will
quash it. Rex v. Beard, 2 Salk. 478. pi. 22. [Both justices must be" present at the same
time and place when the woman is examined ; and if she refuse to filiate, the warrant of
commitment must be signed by them together. 2 Black, R. ioi7. An order of removal,
however, by two justices, separately, and in different counties, hath been adjudged not voidj
but voidable only by appeal to the next sessions. 4 Term R. 596. The order must bear,
upon the face of it, that it was made on the complaint of the parish where the child was born.
1 Bott. (3d edit.) p. 561. But the complaint may be made by others as well as the parish.
1 Barnard. K. B. 261. If a child be born in an extra-parochial place, no order can be made.
1 Bott. 421. pi. 553.] We the said justices doth, instead o£ do ; an order was quashed for this
fault. Salk. 122. pi. 6. 2 Ld, Raym. 1197. (6) One of the justices must be of the quorum.
Dalt. 47. An order quashed, because it did not appear that one of the justices was of the
quorum. 2 Salk. 477. pi. 18. Sid. 222. S. P. but Comb. 63 cotit., and there said, that this
exception had been over-ruled several times; and see now 26 G. 2. c. 27., whereby orders of
justices are not to be vacated for not expressing one of them to be of the quorum, (c) The
place of birth must be set forth in the order, because it may be born in a parish where the
two justices who made the order had no jurisdiction ; and that it may appear that it was
born in that parish to which the relief is ordered. Stile, 368. Dalt. 47. ||6 Term R. 148.
And an order not appearing to be made on complaint of the parish where the child is born,
but stating it to be casual poor there, is bad. 13 East R. 57.n.|| {d) And therefore, not only
the mother, but likewise the putative father, should be summoned to appear, and both parties
examined before any order is made ; but this, however agreeable it seems to natural justice,
is not always practised, the justices being apprehensive that such warning would tend to no
other use, but to make the father keep out of the way : however, it has been resolved that
such sunmions is necessary. Dalt. 52. [The summons may be by a third justice. Ca. temp.
Hardw. 112.; the order need not state it. Cas. Sett. 127. The presence of the putative
father not necessary. Cald. 308.] An order made by two justices of the peace was quashed,
because it was made on an affidavit brought to them without examination of any witnesses.
Comb. 103. ((?) They must adjudge him the father of the child. Sid. 363. Stile, 154.
Dalt. 52. Dougl. 662. [(g) It must appear by the order, that the child was born in the
parish to which the money is ordered to be paid. Stile, 368. ; and it must be so adjudged.
Cald. 172. An order, describing the child as chargeable to an hamlet, is bad. Cas. Sett. 164.
It nmst mention the sex, and name of the child. 1 Stra. 503.] An order, that the reputed
father should pay so much till further order, was quashed ; for that further order might be
forty years hence. 2 Show. 129. An order, that the reputed father should give such security,
as overseers or churchwardens shall think fit, is naught ; for by such order the justices delegate
their authority to others. 2 Salk. 477. pi. 20. Dalt. 47. An order to pay so much money a
week till the child is fourteen years of age, is naught ; for the justices have no power but to
indemnify the parish ; and that is done by obliging the father to maintain the child as long as
it may be chargeable to the parish. Salk. 121. pi. 2. Comb. 252. S. P. But an order for
payment, till nine years old, hatli been adjudged good. 2 Stra. 788. Barnard, K. B. 31. Set.&
Rem. 126. pi. 171. fol. 410. An order, that the father should pay so much money a week to
the parish till the child was twelve years old, quashed ; for the father may take it away and
maintain it himself. Vent. 48. 59. Sid. 222. S. P. Mod. 20. [The father hath no such
power, nor any right to the custody of it ; for, till seven years of age *, the child shall stay
with the mother for nurture. 2 Saund. 182. 1 Ventr. 210. Cas. of S. 64. Newlandv. Osman,
Tr. 27 G. 2. 1 Burn. Just. 199. 15th ed. 2 Wils. 126. 5 Term R 278.] An order, that
the father should pay so much weekly, without saying for how long, is naught ; for it should
be so long as it is chargeable to the parish. Stile, 134. S. P. 2 Keb. 575. 2 Salk. 480. pi. 31.
The justices may order the payment of a sum in gross, for the charges the parish has been
already at to midwife, nurse, c^c. Dalt. 47. Vent. 336. Salk. 124. pi. 1. But an order, that
the father should pay 4.y. to the midwife, and 7s. a week until the child was able to get its
living by working, was quashed: 1st, Because it did not appear that the parish procured the
midwife, or were at any charge with respect to her; and they have no power to order any
money but for the indcnmity of the parish. 2dly, 7s. a week is excessive, and uncertain as to
the time; for the father may, if he pleases, maintain it cheaper; and the order should have
been for so long time as it shall be chargeable to the parish. Vent. 210. |llf the order state that

[* The same law prevailed in France; for, in the case of separation between husband and
wife, the children under seven years old were to remain with their mother, according to the
custom of Beauvoisis, in 1283, c. 57. p. 294. And this law goes as far back us the time of the
Emperor Julian: for that prince informs us, in his Misopogon, that he was placed, at that age,
under the care of a governor.]

the

766 BASTARDY.

the child is likely to become chargeable, without stating that it is so, it is sufficient. 8 East. 19.5,
4 M. & S. 559.|| An order, that the father should pay 2rf. a weeic, is too little, and unreason-
able. Sid. 363. When they order a sum in gross, they must shew for what, and the charges
the parish hath been at. Comb. 103. jjlf the order direct a sum to be paid towards Ijdng in
and maintenance it is enough, without stating that the sum was expended by the overseers.

4 Maule & S. 559. 1| They cannot order a sum in gross for putting out the child apprentice.
Comb. 448. An order to pay so much weekly to the overseers of the poor for, &c. is good ;
for, before the institution of these, it might have been ordered to be paid to two or three of
the inhabitants. Salk. 122. pi. 6. 2 Ld. Rayra. 1197. The order directed, that security
should be given for the performance of it ; and, because the statute directs, that the security
should be either to perform order, or appear at the next sessions ; for this the order was
quashed. 2 Show. 258. 2 Bulst. 242. S. P. {h) If the child is no bastard, and yet they judge
him such, an action lies against them. When the husband was seven years absent beyond sea,
and they adjudged the child, which the wife had in that time, a bastard. 5 Mod. 419.
Salk. 122. pi. 5. 123. pi. 7. vide supra. ||(i) Costs of obtaining the order cannot be directed.
9 East, 25. But now the costs of securing the father, and of the order of filiation, not exceed-
ing 10/. maybe charged on the father. 49 G. 3. c. 68. § l.|| [{k) A feme covert, and a soldier,
may be committed for disobedience to an order of bastardy; and the commitment may be,
either to the common gaol, or house of correction. 3 Bur. 1679. 2 Term R. 270. 5 Terra
R. 156. But a person cannot be committed for refusing to discover the father of a bastard
child. 1 Bott, 422, pi. 554. An order cannot be made for security till after contempt.
2 Ld. Raym. 858.] (/) Must be intended that the order made by the two justices must be
confirmed, or discharged, at the next quarter sessions of that part of the county where it was
made, and not at the sessions in the county; for that would be mischievous in many counties
where there are several sessions in distinct parts of the county. Dalt. 48. Sid. 149. Must
he the next after notice of the order. Sid. 325. [If an order of bastardy be quashed by the
court of general quarter sessions next after such order, the Court of K. B. will not intend that
a court of general sessions intervened. 3 Term R. 496.] (ni) Exception was taken to an
order, that it was made ad sessionem pads in com. preed. and did not say pro covi. but over-
ruled. Vent. 37. (n) It seems, by the better opinions, that the justices in their sessions have
no power to make an original order, and are only to reverse, or affirm, the order made by the
two justices; but for this, vide 2 Bulst. 342. 555. Dalt. 48, 49. Cro. Car. 337. 341. 2 Show.
132. pi. 110. Vent. 48. 59. [It is settled, that the justices at sessions have such power.
Dougl. 610.] But, upon the removal of the cause by certiorari, the Court of King's Bench may
either reverse the order in whole or in part; and though they reverse the order for irregu-
larity, yet will they oblige the father to give security to appear at the next sessions, to abide
such further order as shall then be made. Comb. 264. 2 Stdk. 477. pi. 20. [It is for this
reason, that the personal appearance of the defendant is required on a motion to quash an
order. 1 Black. R. 198. The sessions, in the case of an appeal, cannot commit for nonpay-
ment, but must proceed on the original order. 2 Ld. Raym. 1157. After the defendant
is discharged by the sessions, on the merits, a new order cannot be made. 2 Ld. Raym.
1423.]

Carth. 397. Bastard children gain a settlement in the parish where they

Boerham and ^re born ; but if a woman big with child of a bastard, is by order
S Ik i2r'Dl 4 ^^ '^° justices removed from the parish of A. to jB., as her last

5 Mod. 204. ' place of settlement, from which order B. appeals, but before the
Comb. 360. next session she is delivered of a bastard child in B., and after-
Vide 2 Bulst. wards the order of the two justices is vacated, the child must
D^t ^4^ rSo f*^llo^ ^^^^ mother, and gains a settlement in A.

if a woman comes to beg as a vagrant in a parish which she does not belong to, and drops
her bastard there, it shall be settled in the mother's own parish, if she is apprehended for her
vagrancy. Stat. 17 G. 2. c. 5. So a bastard born in gaol. Sess. Ca. V. i. 94.; or in a
licensed lying-in hospital, 13 G. 5. c 82. § 5. ; or in any house of industry, 20 G. 3. c. 56. § 2.;
or under a certificate, 1 Stra. 186. 2 Stra. 1 168. Burr. Sett. Ca. 187. 264. 650.; shall follow
the mother's settlement.] ijBut see Rex v. Martlesham, 10 Barn. & C. 77. ||

Dougl. 7. 9. [When a bastard, having a different settlement from its mo-

n. 2. ther, lives with her for nurture, the parish where the bastard's

settlement is must maintain it.
1 H. Black. R. If the parents neglect to provide for the sustenance of a bastard
S53. See child, the parish where it is born must do it, though the justices
°"» * ' make no order for that purpose.]

(E) Hoxv Bastards are to he provided for ^ (Jr. yfiy

By the 7 Jac. 1. c. 4. it is enacted, " that eveiy lewd woman 7 j.,c, j ^ 4

" which shall have any bastard (rt) which may be chargeable to (a) The wo-'

" the parish (Z>), the justices of the peace (c) shall commit such man must be

" lewd woman to the house of correction, there to be punished ^^'•yered of

" and set to hard work during the term of one whole year, and chi^ld l^f^

" if she shall eftsoons offend again (</), then to be committed to she can be

" the said house of correction as aforesaid, and there to remain ^^nt to the

" till she can put in good sureties for her good behaviour not "°"?«ofcor-
ic i. cc A • » rection; and

" to offend agam. the child is

not to be sent with her. Dalt. 48. {b) The child must be chargeable to the parish ; therefore,
if the father, or any other, maintains it, it seems, she is not to be punished by this statute. Vide
Dalt. 46. (c) Must be by two justices at least. Dalt. 46. (rf) But she shall not be punished upon
this part of the statute, unless she were before convicted and punished on the first. Q,u. If she
were before proceeded against pursuant to the stat. 18 Eliz. c. 3. 2 Bulst. 348, 349.

II By the 50 G. 3. c. 51. the above clause is repealed, and it is 50 G. 3. c.5i.
enacted that when a woman shall have a bastard child which
shall be chargeable to the parish, it shall be lawful for any two
justices before whom she shall be brought, to commit such wo-
man to the house of correction for the district or place, and
there to be set on work, for any time not exceeding twelve
months nor less than six weeks.

And by §. 3. the justices at a petty session for the division § '•

wherein the parish is situate, may, on a certificate from the
keeper of the house of correction of the woman's good behaviour
during a confinement of six weeks, order the woman to be
immediately discharged from confinement ; provided always, that
nothing therein shall authorize the committal of the woman until
she shall have been delivered for one calendar month. ||

By the 13 & 14 Car. 2. c. 12. par. 19., " Whereas the putative 13 & 14 Car. 2.
" fathers and lewd mothers of bastard children run away out of c. 12. par. 19.
" the parish, and sometimes out of the county, and leave the
" said bastard children upon the charge of the parish where they
" are born, although such putative father and mother have estates
" sufficient to discharge such parish ; it is therefore enacted, that
" it shall and may be lawful for the churchwardens and overseers
" for the poor of such parish where any bastard child shall be
" born, to take and seize so much of the goods and chattels,
" and to receive so much of the annual rents or profits of the
" lands of such putative fathers or lewd mothers, as shall be
" ordered by any two justices of the peace {a), for or towards the [W An order,
" discharge of the parish, to be confirmed at the sessions, for the Sjvmg the
" bringing up and providing for such bastard child, and there- je„s power'to
" upon it shall be lawful for the sessions to make an order for seize such of
" the churchwardens or overseers of the poor of such parish, to ^he putative
" dispose of the goods by sale or otherwise, or so much of them ^^^"^ ^ goods
" for the purposes aforesaid, as the court shall think fit, and to t^ink proper
" receive the rents and profits, or so much of them as shall be is bad. 2 Ld.'
" ordered by the sessions as aforesaid, of his or her lands." Raym. 858.1

By the 6 G. 2. c. 31. it is enacted, " that if any single woman e G. 2. c. 31.
" shall be delivered of a bastard child, which shall be charge- [An examina-
" able, or likely to become chargeable to any parish or extra- ^'°" ^*^.^."

" parochial "" ^^ "^ ^^ *

768

BASTARDY.

' parochial place, or shall declare herself to be with child, and
* that such child is likely to be born a bastard, and to be
chargeable to any parish or extra-parochial place, and shall in
either of such cases, on an examination to be taken in writing
upon oath, before any one or more justice or justices of the
peace of any county, riding, division, city, liberty, or town
corporate, wherein such parish or place shall lie, charge any
person with having gotten her with child, it shall and may be
lawful to and for such justice or justices, upon application
made to him or them by the overseers of the poor of such
parish (a), or by any one of them, or by any substantial house-
holder of such extra-parochial place, to issue out of his or their
warrant or warrants, for the immediate apprehending of such
person so charged as aforesaid, and for bringing him before
such justice or justices, or before any other of his majesty's
justices of the peace of such county, Sfc. ,- and the justice and
justices before whom such person shall be brought, is and are
hereby authorized and required to commit the person so
charged as aforesaid (b), to the common gaol or house of cor-
rection of such county, <^c., unless he shall give security to
indemnify such parish or place, or shall enter into a recog-
nizance with sufficient surety, upon condition to appear at the
next general quarter sessions, or general sessions of the peace,
to be held for such county, t^c, and to abide and perform such
order or orders, as shall be made in pursuance of an act passed
in the 18th year of Queen Elizabeth, concerning bastards be-
gotten and born out of lawful matrimony.

answer enquiries is bad. Ex parte Martin 6 Barn. & C. 80. (a) A de facto overseer of
the poor under 22 G. 3. c. 85. though not legally appointed, is competent to apply under this
statute, 13 East, 55. {b) This clause authorizing the committal of the reputed father in cases
where the woman has not been delivered, is repealed by 49 G. 5, c. 68. § 6. post, p. TCT.']

" Provided, that if the woman so charging any person as
*' aforesaid shall happen to die, or be married, before she shall be
" delivered, or if she shall miscarry of such child, or shall appear
" not to have been with child at the time of her examination,
*' then and in any of the said cases such person shall be dis-
" charged from his recognizance at the next general quarter
" sessions, or general sessions of the peace to be holden for such
" county, i^r., or immediately released out of custody, by warrant
" under the hand and seal, or hands and seals, of any one or
" more justice or justices of the peace residing in or near the
" limits where such parish or place shall lie.

" Provided also, that upon application made by any person
*' who shall be committed to any gaol or house of correction by
" virtue of this act, or by any person on his behalf, to any jus-
" tice or justices residing in or near the limits where such parish
" or place shall lie; such justice or justices is and are hereby
" authorized and required to summon the overseer or overseers
" of the poor of such parish, or one or more of the substantial
" householders of such extra-parochial place, to appear before
" him or them at a time and place to be mentioned in such

" summons.

is admissible
evidence on
an application
to the court
of sessions to
make an order
of filiation,
though the
woman die
before such
application
can be made.
Rex V. Ra-
venstone,
5 Terra R.
375.]; Hand
see 3 East, 58.
The ordLr
need only
state that the
child is likely
to become
chargeable,
4M.&S. 559.
One justice
has not power
under this act
to compel a
single woman
to be exa-
mined, and his
commitment
of her for
refusing to

(E) How Bastards are to be provided for, (Jc. 769

" summons, to shew cause why such person should not be dis-
" charged ; and if no order shall appear to have been made in
" pursuance of the said act of the 1 8th of Elizabeth, or within
*' six weeks after such woman shall have been delivered, such
" justice or justices shall and may discharge him from his im-
" prisonment in such gaol or house of correction to which he
" shall have been committed.

" Provided always, that it shall not be lawful for any justice [This provi-
" or justices of the peace to send for any woman whatsoever fJon shews the
" before she shall be delivered, and one month after, in order to our kws^ ^ut
" her being examined concerning her pregnancy, or supposed it proves very
" pregnancy, or to compel any woman before she shall be de- frequently an

" livered to answer to any questions relating to her pregnancy." hai'dship upon

•' ^ " r o ./ parishes, by

suffering the parents to escape. 1 Black. Com. 458. To an indictment before the passing of
this act for secreting a woman big with an illegitimate child, so that she could not be had to
give evidence against the father, the defendant demurred : Et per cur. judgment for the
defendant, for it cannot be illegitimate before born, there being always a possibility that it
may be born in lawful wedlock. 1 Stra. 612. 2 Ld. Raym. 1368.]

Ij The statute 6 G. 2. c. 31. only authorizes parish officers to Cole v.
take securities for the indemnity of the parish ; and therefore where ^^wer, 6 East,
the defendant gave a promissory note to the churchwardens, Sfc.
for an absolute sum, and tendered a lesser sum for the actual
amount of expense incurred, and on a trial pleaded such tender,
which was found for the defendant, it was held that the plaintiff
could not recover further on the note, it being contrary to the
statute and to public justice to allow the parish officers to take
an absolute sum in lieu of indemnity.

And no action lies on the note if the parish has not been Wilde v.
damnified. Griffin, 5 Esp.

Ca. 141.

Such a bond being payable on a contingency, is not capable Overseers of
of valuation so as to be proved under a commission of bankrupt St. Martin v.
against the obligor, and consequently it is not barred by his cer- Warren,
tificate ; but the parish officers jmay recover expenses incurred L,"^"' ^ -
subsequent to the bankruptcy. 6G.4. c. 16.

^^Q- ante tit. Bankrupt, which now provides for the proof of contingent debts; and see
Davies v. Arnott, 3 Bing. 154.

A bond given voluntarily by the father of a bastard child, and Middleham v.
not under the compulsion of the 6 G. 2. c. 31. is good, though ^ vl^'^^'o c
not expressly conditioned to indemnify the parish, but to pay a ^jq , ^nd see
sum certain every three months until the child should be deemed 4 Taunt. R.
capable of providing for herself; for such a bond is not contrary 498. 7 Bing.
to public policy like the bond in Cole v. Gowet; and the words '*''^'
*' deemed capable" must be taken to mean so deemed by a jury.

But where the mother of a bastard child, upon its birth, de- Clark r. John-
posited with the overseers a sum of money to meet any charges son, 3 Bing. R.
which might accrue in respect of the child, it was held by the ^'■^'^'■
Court of Common Pleas, that the mother might recover back
the sum from them in an action for money had and received,
since the deposit was not authorized by the statutes respecting
bastards, and was illegal.

Vol. I. 3D It •

770 BASTARDY.

Strangeways It is not a good plea to an action upon such a bond that, after

4 Tauntl^gg ^^^ ^^^^^^ attained seven years, the father offered to keep and
maintain it, and requested the overseers to deUver it to him, |
without shewing that the child was in the custody of the over- '
(a) Where the seers (a), for it might be with the mother, and then they could
RJ?^.^^°^^^ not take it; and it seems that the putative father has no right
equally held ^^ '^^ custody of the child,
bad. Pope v. Sale, 7 Bing. 477.

Watkins v. If the putative father pay a sum to the parish officers to

Hewlett, indemnify them against the expenses of the child, and the

1 Bro.& B. 1. chiifj (Jigs he may recover the sum unexpended in their hands
I Camp. 598. u J J • J . L •

564. • see ^^ money had and received to his use.

7 Dowl. & Ry. 612.

£4G. 3. C.170. By the 51' G. 3. c. 170. § 7. it is provided, that all securities
§ 1' given or received, or thereafter to be given, for indemnifying any

district, parish, township, or hamlet for the maintenance of any
bastard child, or for any expenses occasioned by the birth of
the child, within such district, c^r. shall be vested in the over-
seers of the poor of such district, 4*^. for the time being, and that
it shall be lawful for such overseers, Src. to sue for the same by
their description of overseers of such district, parish, township,
or hamlet, and such action shall not abate by any change of
overseers, 4'C.
Addey v. The action must be in the name of the overseers for the time

Woolley, being, and not of those to whom the bond was given, if they

8 launt. 691. i n tv

nave gone out ot omce.

49 G. 3. c. 68. By the 49 G. 3. c.6&. intituled An Aet to explain and amend
the law of bastardy^ so Jar as relates to indemyiifying parishes in
respect thereof, it is enacted, that every person who shall here-
after be adjudged to be the reputed father of any bastard child,
shall be chargeable with the payment of all reasonable expenses
incident to the birth of such bastard child, and also to the rea-
sonable costs of apprehending such reputed father, and of the
order of filiation, such costs of apprehending the reputed father
and of the order of filiation not to exceed the sum of ten pounds ;
and all such expenses and costs shall be duly ascertained, on
oath, before the justices of the peace or the court of quarter ses-
sions making such order of filiation, which oath such justices, ^c.
are empowered to administer.
§ 2. § 2. And if any single woman shall declare herself to be with

child, and that such child is likely to be born a bastard, and to
be chargeable to any parish, township, or extra-parochial place,
and shall, in an examination to be taken in writing upon oath
. before any justice of any county, riding, Sfc. wherein such parish,

township, or place shall be, charge any person with having
gotten her with child, it shall be lawful for such justice, upon
application by the overseers of the poor of such parish, SfC, or
by any substantial householder of such extra-parochial place, to
issue out his warrant for the immediate apprehending of such
person so charged as aforesaid, and for bringing him before such

justice

(E) How Bastards are to he provided for, ^c. 77I

justice, or before any other justice of such county, riding, Sfc.\
and the justice before whom such person shall be brought, hav-
ing authority in this behalf, is hereby authorized and required
to commit the person so charged to the common gaol or house
of correction of such county, riding, S^c.^ unless he shall give
security to indemnify such parish or place, or shall enter into
recognizance with sufficient sureties to appear at the next gene-
ral quarter sessions, or general sessions of the peace for such
county, riding, 8^c. to perform such order as shall then be made
in pursuance of the act of the eighteenth year of the reign of
Queen Elizabeth, unless one such justice as aforesaid shall have
certified in writing under his hand to such general quarter ses-
sions, or general sessions of the peace, that it had been proved
before him, upon the oath of one credible witness, that such
single woman had not been then delivered, or had been delivered
within one month only previous to the day on which such gene-
ral quarter sessions or general sessions of the peace shall be
holden, or unless two justices of the peace of such county,
riding, S^c. shall have certified in writing under their hands, to
the next, or, where such woman shall not have been delivered
as aforesaid, then to the immediately subsequent general quarter
sessions or general sessions of the peace, that an order of filiation
had been already made on the person so charged, or that such
order was not then requisite to be made on account of the death
of the child, or for other like sufficient reasons, in each of which
cases firstly before mentioned it shall be lawful for the justices
at such general quarter sessions or general sessions of the peace
to respite such recognisance to the then next general quarter
sessions, or general sessions of the peace to be holden for such
county, riding, Sfc, without requiring the personal attendance of
the putative father, or of his sureties ; and in either of the said
two last-mentioned cases it shall be lawful for the justices wholly
to discharge such recognizance.

§ 3. If any reputed father, or any mother of such bastard on $ 5.
whom any order of filiation or maintenance of such child shall
have been made by the court of quarter sessions, or which shall
have been made by two justices of the peace and confirmed by
the court of quarter sessions, or against which no appeal shall
have been made to the court of quarter sessions (a), shall neglect («) Where an
or refuse to pay any sum or sums of money which he or she ° """? *" ^ g\,^*„
shall have been ordered to pay towards the maintenance or other ,„,jjg g„j the
sustentation for the relief of any such bastard child by any such time for appeal
order, it shall be lawful for any justice of the peace of the county, past, it cannot
riding, Sfc. in which such reputed father or such mother shall [j^j "^ t^T
happen to be; and the said justice is hereby required, upon iseHz. c.5.;
complaint being made to him by any one of the overseers of the but the mt^s-
poor of any parish {b\ township, or place liable to the support and tratc must
maintenance of such child, or where such bastard child shall [h^^g gJs.
then be, and upon proof on oath of such order for the payment ^ gs. § s. by
of such sum or sums of money, and of such sum or sums of commitment
money being unpaid, and of a demand having been made and a for three

3 D 2 refusal

months. Ex
parte Addis,
J Barn. & C.
87.

{b) A de facto
guardian of
the poor of a
parish united
under the
22 G. 3. c. 83.
though not
«lu]}' appoint-
ed, is compe-
tent to make
the complaint.
Rex V. St.
Martyr,
13 East R. 55.

§4.

§5.

BASTARDY.

refusal to pay the same, or that such reputed father or such
mother hath left his or her usual place of abode, and hath avoided
a demand thereof being made by such overseers, to issue his
vi^arrant to apprehend such reputed father or such mother, and
to bring him or her before such justices, or any other justice of
the peace of the same county, riding, 8fc. to answer such com-
plaint ; and if such reputed father or such mother shall not pay
such sum as shall appear to tlie said justice before whom such
reputed father or such mother shall be brought, to be due and
unpaid, or shall not shew to such justice some reasonable and
sufficient cause for not so doing, it shall be lawful for such
justice, and he is hereby required to commit such reputed father
or such mother to the public house of correction or common
gaol of the said county, to be there kept to hard labour for
the space of three months, unless such reputed father or such
mother shall, before the expiration of the said three months,,
pay or cause to be paid to one of the overseers of the poor of
the parish, township, or place on whose behalf such complaint
as aforesaid is made, the said sum of money so unpaid as
aforesaid, and so from time to time, and as often as such
reputed father or such mother shall, in manner aforesaid,
neglect or refuse to pay any other sum or sums of money that
shall afterwards become due by virtue of and under such order,
after the expiration of or discharge from any such former im-
prisonment as aforesaid.

§ 4). Provides that all such expenses and costs shall be
wholly subject to the discretion of the justices or court of quarter
sessions who shall make such order of filiation ; and the justices
or court of quarter sessions are hereby authorized, if they
shall see fit, to allow and order payment of the whole or any
part thereof; provided always, that the costs of apprehending
the reputed father, and of the order of filiation, shall not in any
case exceed the sum of ten pounds ; and for securing the due
payment of the same, after such allowance and order as afore-
said, all and every the powers, authorities, provisions, clauses,
matters, and things contained in the said act passed in the
eighteenth year of the reign of Queen Elizabeth, concerning
bastards born and begotten out of lawful matrimony, shall be
observed in the execution of this act, and shall be construed to
apply as fully and effectually to all intents and purposes as if the
said powers, authorities, S^c. were specially recited and re-enacted
in this act.

§ 5. Provided also, that any person who shall think himself
aggrieved by any order made by such justices as aforesaid, under
the provisions of this act, and not originating in the quarter
sessions, may appeal to the next general quarter sessions of the
peace to be holden for the county where such order shall be
made, on giving notice to such justices or to one of them, and
also to the churchwardens and overseers of the poor of the parish
on whose behalf such order shall have been made, or to one of
them, ten clear days before such general quarter sessions of the

peace

(F) Murdering Bastards,

773

peace at which such appeal shall be made, of his, her, or their
intention of bringing such appeal, and of the cause and matter
thereof, and entering into a recognizance, within three days after
such notice, before some justice of the peace for such county,
with sufficient surety, conditioned to try such appeal, and abide
the judgment and order of, and pay such costs as shall be awarded
by, the justices at such quarter sessions ; which said justices at
their quarter sessions, upon proof of such notice being given,
and of entering into such recognizance as aforesaid, shall and
they are hereby required to proceed in, hear and determine the
causes and matters of all such appeals, and shall give such relief
and costs to the parties appealing or appealed against as they in
their discretion shall judge proper; and such judgments and
orders therein made shall be final, binding, and conclusive to
all parties concerned to all intents and purposes whatsoever.

§ 6. And be it further enacted, that so much of an act passed
in the sixth year of the reign of his late majesty King George the
Second, intituled An Act for the relief of parishes arid other places
from such charges as may arise from bastard children born xvithin
the same J as authorizes the justice or justices before whom the
reputed father of a bastard child shall be brought, in cases where
the woman has not been delivered, to commit the reputed father
to the common gaol or house of correction, unless he shall give
security to indemnify the parish or place, or shall enter into a
recognizance with sufficient security, upon condition to appear
at the next general quarter sessions, or general sessions of the
peace, shall be and is hereby repealed.

§ 7. And be it further enacted, that from and after the passing
of this act no appeal, in any case relating to bastardy, shall be
brought, received, or heard at the said quarter sessions, unless
such notice shall have been given, and such recognizance entered
into in manner aforesaid, according to the provision of this actj)

§6.

§7.

(F) Murdering Bastards, Hand concealing their Birth.H

"DY the statute 21 Jac. 1. c. 27-, if a woman delivered of issue, nj^^'^'lu*^**^'
which being born alive would be a bastard, endeavour by statute it hath
burying, drowning, S^c, by herself or others, so to conceal been adjudged,
its death, that it may not appear whether born alive or not, that it is not
it is murder^ unless she prove, by one witness at least, that it was [if'^^j^j^dPi^ent
born dead. be drawn spe-

cially, or conclude eontrh formam statiUi; for the statute doth not create a new offence but,
only makes the concealment undeniable evidence of murder. It hath been agreed, too, that
where a woman appears to have endeavoured to conceal the death of such child within the
statute, there is no need of any proof that the child was born alive ; but it shall be unde-
niably taken that the child was born alive and murdered by the mother. 2 Hawk. P. C.
c. 4G. § 4.5. But of late years, as this law seemoth to be somewhat severe, it hath been usual,
upon trials for this offence, to require some sort of presumptive evidence that the child was
born alive before the other constrained presumption is admitted. 4 Black. Com. 198. It hath
been adjudged, that where a woman lay in a chamber by herself, and went to bed without
pain, and waked in the night and knocked for help, but could get none, and was delivered of
a child, and put it in a trunk, and did not discover it till the following night, yet she was
not within the statute because she knocked for help. Kelynge, 32. Also it hath been agreed,

3 D 3 that

77i^

BIGAMY.

that if a woman confess herself with child before-hand, and afterwards be surprised and deli-
vered, nobody being with her, she is not within the statute, because there was no intent of
concealment. Kelynge, 33. So, if it appear that she hath made any the slightest provision for
clothing the child]
43 G. 3. c. 58.

§ 3. 9 G. 4.
C.54. §14.
See Rex v.
Cornwall,
Russ. & Ry.
336., decided
on the 43 G. 5.
c. 58. now
repealed.

II By the 43 G. 3. c. 58. § 3. the above provision is repealed,
and by 9 G. 4. c. 34. § 14. if any woman delivered of a child
shall by secret burying or otherwise disposing of the dead body,
endeavour to conceal the birth, she shall be guilty of a mis-
demeanor, and liable to be imprisoned for any term not exceed-
ing two years ; and it shall not be necessary to prove whether
the child died before, or at, or after its birth ; provided that if
any woman tried for the murder of her child shall be acquitted,
the jury may find, in case it shall so appear in evidence, that
she was delivered of a child, and that she did by secret burying
or otherwise disposing of the body, endeavour to conceal the
birth thereof, and thereupon the court may pass such sentence as
if she had been convicted on an indictment for concealing
the birth. II

Cro.Eliz. 94.
Hawk. P. C.
c.34. [This
offence is cor-
ruptly called
higawy ; for
that properly
signifies being
twice married

BIGAMY.

JV/TATRIMONIAL causes are properly cognizable in the
spiritual courts, and offences against the rights of marriage
punishable by the ecclesiastical law; but this offence of bigamy,
or marrying a second wife, the first being alive, is made felony
by statute, but the offender is not ousted the benefit of his
clergy.

it is more justly denominated polygamy, or having a plurality of wives. —
Bigamy, according to the canonists, consisted in marrying two virgins successively, one after
the death of the other, or in once marrying a widow. Such were esteemed incapable of orders;
and by a canon of the council of Lyons, A. D. 1 274, holden under pope Gregory X. were omni
privilegio clericali nudati et coercione fori secidaris addicti. (6 Decretal. 1.12.) This canon
was adopted and explained in England by statute 4 E. 1. st. 3. c. 5., and bigamy thereupon
became no uncommon counterplea to the claim of benefit of the clergy. (M. 40 E. 3. 42.
M. 1 H. 4. 11. 48. M. 13 H. 4. 6. Staunf. P. C. 134.) USee 5 Evans's Stat. 216. |j The
cognizance of the plea of bigamy was declared by stat. 18 E. 3. st. 3. c. 2. to belong to the
court christian, like that of bastardy. But by stat. 1 E. 6. c. 12. $ 16. bigamy was declared
to be no longer an impediment to the claim of clergy. SeeDalt. 21. Dy. 201. 4 Black.
Com. 163. — It may be added as a further mark, perhaps, of the odiousness of bigamy among
the very early inhabitants of this island, that by the custom of gavelkind, which was very ex-
tensive, and is supposed to be a relic of the ancient Britons (l Inst. 175 b.), a second marriage
incurred a forfeiture of dower. 1 Inst. 53 b. 1 Wooddes. 425.]

1 Jac. 1. c. 11.
See Observ.
on Stat. 436.
(3d edit.)
wherein you

By the 1 Jac. 1. c. 11. it is enacted, " that if any person or
" persons within his majesty's dominions of £w^/aw(^? and Wales,
" being married, do marry any person or persons, the former
" husband or wife being alive, that then every such offence

« shall

BIGAMY. 775

« shall be felony, and the person or persons so offending shall will find an ill-

" suffer death as as in cases of felony ; and the party and grounded ob-

*' parties so offending shall receive such and like proceeding, s^""^^^'**" °f

" trial, and execution, in such county where such person or per- p^«Vs*on

" sons shall be apprehended, as if the offence had been com- this law, with

*' mitted in such county where such person or persons shall be the proper an-

" taken or apprehended." (a) But it is provided, " that nothing ®*^'':. ^^" P''°"

!• . o seditions on

" in this statute contained shall extend to any person or persons this statute a

" whose husband or wife shall be continually remaining beyond marriage in

" the seas by the space of seven years together (b) ; or whose ^^<=t ™"st be

*' husband or wife shall absent him or herself the one from the !?'^^!,'oo<rni
,. 1 , , p , . , , . 4 Burr. 2059.J

Other by the space 01 seven years together, m any parts withm (a)it is agreed,

" his majesty's dominions (c), the one of them not knowing the that if the

" other to be living within that time. Also provided, that the ^^^^ marnane

*' statute shall not extend to any person or persons who shall ^^'^^and^the

*' be at the time of such marriage divorced by a sentence in the latter in Eng-

" ecclesiastical court {d}, or to any person or persons where the land, the party

" former marriage shall be by sentence in the ecclesiastical ^.^y JjV""

" court declared to be void and of no effect; nor to any person but tf the* first

*' or persons, for or by reason of any former marriage had or were in Eiig-

** made within age of consent, {e) Also provided, that no at- iand, and the

" tainder for this offence shall make or work any corruption of ^''**^'^^!" beyond

*' blood, loss of dower, or disinherison of heir or heirs." ^.j^^'j. ^j^^ ^

cannot be indicted, because the second marriage, which made the offence, was not within any
county here. Sid. 171. But 1 Hawk. P. C. c. 34. holds, that the party may in the last case
be indicted, and relies on the express words of the statute. \{{c) This exception applies, though
th» party in England has notice that the other is living. 1 Hale, 695. 5 Inst. 88. 4 Black.
Com. 164. (rf) Lord Hale says, these words must in favorem vitce be intended to mean Eng'
land, Wales^ or Scotland; but the Isle of Wight is not beyond the seas within the first clause,
because infra corpus comitatus Southampton : so for Scilly, Lundr/. Quare, of Guernsey and
Jersey. 1 Hale, 693.|| (e) If one of the parties only were under the age of consent at the time
of such marriage, the exception extends as well to the party above the age of consent as to the
other; because the power of disagreeing was equal on both sides. Roll. Abr. 540. 3 Inst. 89.
Co. Lit. 79. H. P. C. 121. Hawk. P. C. ill. HThe age of consent is fourteen years in a maa
and twelve years in a woman ; and the construction on the clause has been, that if either of
the parties were within that age at the time of the first marriage, not only the one within the
age, but the other also who is above it, is entitled to the benefit of the exception. 1 Black.
Com. 436. Rex v. Jordan, Mich. T. 1802. Russ. & Ry. 48. But if the parties agree to the
marriage when of full age, it seems it would be within the act. Russ. on Cri. 191.|| [The
first and true wife is not an admissible witness against her husband. 1 Hale, 693. Even an
af&davit by the first wife to postpone the trial against the husband on an indictment upon this
statute, hath been rejected. O. B. i^(?6. 1786.; but see Adding. P. S. 411. But the second
woman is competent to prove the marriage, for she is not his wife so much as de facto.
1 Hale, 693.]

II The provisions of the above statute were in several respects 9G. 4. c. 51.
defective. A person whose consort had been abroad for seven ^^e 1 Russ.
years, though known to be living, might have married again °|Jj Addenda
with impunity. And so might a person who was only divorced p.g.
a mcnsa et thoro. The statute has therefore been repealed by
9 0.4. c. 31., which, by §22. enacts, that any person, being
married, who shall marry any other person during the life of
the former husband or wife, whether the second marriage be in
Englatid or elsewhere, shall be guilty of felony, and liable to be
transported for seven years, or to be imprisoned for any term
not exceeding two years; and such offence may be tried and

3 D 4 punished

776

BIGAMY.

1 Hawk. P. C.
c. 34. 3 Inst.
89. H.P.C.
1 22. Kelynge,
27. Cro. Car.
461.

Gibs. Cod.
t. 22. c. 4.

punished in the county where the offender shall be apprehended
or be in custody, as if actually committed there, provided the
act shall not extend to any second marriage contracted out of
England by any other than a subject of his majesty, or to any
person married a second time, whose husband or wife shall have
been continually absent from such person for seven years, and
shall not have been known by such person to be living within
that time; or shall extend to any person who, at the time of
such second marriage, shall have been divorced from the bond
of the first martiage, or to any person whose former marriage
shall have been declared void by the sentence of a court of
competent jurisdiction.

The above statute of James remains in force, however, as to
all offences committed before or upon the last day of June 1828.
With respect to the exception in the statute 1 Jac. 1. as to
persons divorced, it is held that divorces a mensa et thoro causa
adulterii et sawitice are within the exceptions, though the word
separamus and not divortiarmis be made use of in the sentence ;
for the statute being penal shall be construed favourably, and
such separations are taken for divorces in common under-
standing. II

[If a marriage be declared void by an ecclesiastical sentence,
and there be an appeal to a higher spiritual tribunal, which,
by suspending the sentence, is a supposed continuation of the
marriage, yet one of the parties marrying again doth not incur
the penalties of the law, although such second marriage is indeed
unlawful.]

II Where, after the first marriage in England a divorce has been
obtained in a foreign country, it appears that such divorce will
not prevent a second marriage being indictable as bigamy in
England, unless the divorce were obtained on grounds which,
by the law of England, would warrant a divorce ; the divorces
and sentences referred to in the third section of the statute
of James being held to mean divorces and sentences of the
ecclesiastical courts, within the limits to which that statute
applies, {a)

The prisoner Lolley was indicted for bigamy ; both his mar-
riages were in Etigland, but before his second marriage his wife
obtained a divorce a vinculo matrimonii in a commissory court
of Scotland. It appeared that he took his wife into Scotland
that she might be induced to institute a suit against him there,
and that he cohabited with a prostitute in order to irritate his
wife, and furnish a ground for a divorce. A case being reserved,
the judges held that no sentence of any foreign court could dis-
solve an English marriage a vinculo for grounds on which it was
not liable to be so dissolved in England ; and that no divorce
of an ecclesiastical court was within the exception in the third
section of the statute, unless it was a divorce of a court within
the limits to which the statute extends.

BILLS OF SALE. 777

With respect to the exception in the statute as to former Duchew of
marriages declared void by sentence of an ecclesiastical court, it Kingston's
was resolved by the judges, that a sentence of the Spiritual Court ^^ ^ ^ ^**"
against a marriage, in a suit of jactitation of marriage, is not i Leach' us
conclusive so as to stop the counsel for the crown from proving
the marriage, that sentence having decided on the invalidity of
the marriage only collaterally, and not directly; and further,
admitting tlie sentence to be conclusive, yet the counsel for the
crown may avoid the effect of it by proving it to have been
obtained by fraud or collusion.

In a prosecution on the statute a marriage de facto subsisting 5 \^i^ gg
at the time of the second marriage must be proved, and is suf-
ficient to bring a case within the statute, though such first
marriage be voidable by reason of consanguinity, nullity, or the
like. But it has been ruled, that, though a lawful canonical j j^ygg ^^ q^
marriage need not be proved, yet a marriage in fact (whether 192. 10 East*
regular or not) must be shewn, which it seems must be under- 287. note (A)
stood where there is jprima facie evidence of a lawful marriage.

In a case where the first marriage, which was with a Roman Lyon's case.
Catholic woman, was by a Romish priest in England^ not accord- ^\^ Bail^,
ing to the ritual of the church of England, and the ceremony was p' q ^
performed in Latin, which the witnesses did not understand, and As to an Irish
could not therefore swear that the ceremony of marriage accord- marriage by a
ing to the church o^ Rome vias read, it was directed that the ^"lo^see
defendant should be acquitted. Willes C. J., who tried him, j jL^ 4. 'mw*
seemed to be of opinion that a marriage by a priest of the church c. C. mo. As
of Rome was a good marriage, if the ceremony according to that to the cere-
church could be proved, namely, the words of the contracting "monies of

, r •- II *^ "^ ° marriage, and

Pa^toflt-y the provisions

of the marriage act, see tit. Marriage and Divorce, Vol. V. ; and see Rex v. Waully, 1 Ry.
& Moo. C.C. 163.

BILLS OF SALE.

A BILL of sale is a solemn contract under seal, whereby a Yelv. 196.

man passeth the right of interest that he hath in goods and Cro. Jac. 270.
chattels : for if a man promise or give any chattels without valu- g Qq^'s"^*
able consideration, or without delivering possession, this alters
no property, because it is nudum pactum unde non oritur actio ; but
if a man sell goods by deed under seal duly executed, this alters
the property between the parties, though there be no consider-
ation, or no delivery of possession, because a man is estopped to
deny his own deed, or affirm any thing contrary to the manifest
solemnity of contracting.

[By

778

26 G. 3. C. CO
§17.

3 Term R. 406
(o) A mere
clerical mis-
take will not
vitiate it.
4TermR.16r
iJAs to the
provisions re-
specting trans-
fers of ships,
Abbott); and

BILL OF EXCEPTIONS.

[By statute 26 G. 3. c. 60. } 17. it is enacted, " that when and
" so often as the property in any ship or vessel, belonging to any

• " of his majesty's subjects, shall be transferred to any other or
" others of his majesty's subjects, in whole or in part, the certi-
** ficate of the registry of such ship or vessel (required by this act)
*' shall be truly and accurately recited in words at length (a),

• " in the bill or other instrument of sale thereof; and that other-
" wise such bill of sale shall be utterly null and void to all

. *' intents and purposes."

see 6G.4. Clio.; and see Abbott on Shipping, 45. (5th edit., by Mr. J. H«

see tit. Merchant and Mercliandize, Shipping, Vol. V.||

The decisions upon bills of sale having ari.sen chiefly upon
the statute of 1 3 Eliz. c. 6., the reader is referred for them to
tit. « Fraud," (C).]

2 Inst. 426.

{b) Fix. ISE.I.
c 31. For pre-
cedents of
bills of excep-
tions, and
proceeding
thereupon,
vide Rast. Ent
275. 323.
Brownl. Ent.
129. Lutw.
906.

3 Burr. 1692.

1 Black. R.
556. Bull. Ni.

2 Inst. 427.

BILL OF EXCEPTIONS.

A T common law a writ of error lay for an error in law, ap-
parent in the record, or for an error in fact, where either
party died before judgment ; yet it lay not for an error in law not
appearing in the record ; and therefore, where the plaintiff or
demandant, tenant or defendant, alleged any thing ore tejitis,
which was overruled by the judge, this could not be assigned,
for error not appearing within the record, nor being an error in
fact, but in law ; and so the party grieved was without remedy ;
And therefore,

" By the statute Westm. 2. (Z>), when one impleaded before
" any of the justices alleges an exception, praying they will
" allow it ; and if they will not, if he that alleges the exception
" writes the same, and requires the justices will put to their seals,
" the justices shall so do; and if one will not another shall; and
" if, upon complaint made of the justices, the king cause the
" record to come before him, and the exception be not found
" in the roll, and the plaintiff shew the written exception, with
" the seal of the justices thereto put, the justice shall be com-
" manded to appear at a certain day, either to confess or deny
** his seal ; and if he cannot deny his seal, they shall proceed to
" judgment according to the exception, as it ought to be allowed
" or disallowed."

In the construction of this statute, the following opinions have
been holden :
Pri. 317.

That the statute extends to the plaintiff as well as defend-
ant

BILL OF EXCEPTIONS. 779

ant (a) ; also to him who comes in loco tenentis, as one who prays («) But it does
to be received, or the vouchee, and in all actions whether real, "°^ extend to
personal, or mixed. ^othTJeS

as bailiff of a franchise, who demands conusance. 2 Inst. 427'.

[A bill of exceptions ought to be upon some point of law, Bridgman and
either in admitting or denying evidence, or a challenge, or some *^°''» Show,
matter of law arising upon a fact not denied, in which either g vj" if-^ •
party is over-ruled by the court. If such bill be tendered, and sig.
the exceptions in it truly stated, the judges ought to set their
seals in testimony that such exceptions were taken at the trial :
but if the bill contain matters false, or untruly stated, or matters
wherein they were not over- ruled, they are not obliged to affix
the seal. A bill of exceptions is not to draw the whole matter
into examination again ; it is only for a single point, and the
truth of it can never be doubted after the bill is sealed, for the
adverse party is concluded from averring the contrary, or sup-
plying the omission of it.]

It seems agreed, that no bill of exceptions is to be allowed in Sid. 84. Sir
treason or felony, for the words of the statute are, cum aliquis Henry Vane's
implacitatur coram aliquibusjnsticiariis, S^c. ; and if such bills were ^^ ^^- ^^•
allowed it would be attended with great inconveniency, because g" q ^"•^^**
of the many frivolous exceptions that might be put in by prisoners 486.8. C.
to the delay of justice; besides, in criminal cases the judges cited. Kelynge,

are of counsel with the prisoner, and are to see that justice is i5-S.C.re-
1 u-^ r ' . J solved. But

^on^h'™- . . whether on in.

indictments for offences not capital, a bill of exceptions is to be allowed, qucere ; et vide 2 Hawk
P. C. c. 46. § 1. [In 1 Leon. 5. it was allowed in an indictment for a trespass; in 1 Vent.
336., in an information in nature of a quo toarranto ; in 1 Vern. 175. in an indictment for a
riot ; and in K. v. Bounce, cited in Ca. temp. Hardw. 250., it was allowed by Lord Raym. at
Ni. Pri. that it might be done in an indictment for a libel. In the Exchequer it is allowed
upon information ; but those are properly civil suits for the king's debts : so in deveneruntt
but they are called the king's actions of trover. Per Ld. Hardwicke, Ca. temp. Hardw. 251.1
iJRex V. Stratton, 21 Howell, Sta.Tri. 1187.1|

[A bill of exceptions will not lie to the justices at sessions on Rex v. Pres-
hearing an appeal against an order of removal ; for their authority '""Jj, ^""J* "^7*
is final as to matters of fact.] ,oJ^J ^"^"^

temp. Hardw. 249. 1 Barnard. K. B. 415. S. C.

The statute extends not only to all pleas dilatory and peremp- 2 Inst. 427.
tory, but to prayers to be received, oyer o^ records and deeds, Dyer. 231.
8^c. ; also to challenges of jurors, and any material evidence P^ 3. Raym.
offered and over-ruled. S respeVt'

to these, a falsity be inserted in the bill, the judges are not bound to seal it, but may return
the special matter; for the command of the writ is conditional, quod siUa est tunc sigUlavestra
apporiatis. Show. P. C. 122.

If in a trial upon a title to a lease for years, the judges Raym. 404.
(though insisted upon) will not direct the jury that the probate ^'^."^^J^?[.*^'"
of a will is conclusive evidence, but will only tell the jury that it is 2"joncs' ile,
good evidence ; and thereupon the jury find there is no such will ; s. C. ad-
yet a bill of exceptions will not lie; for though the evidence be judged ia
conclusive, the jury, if they will, may run the hazard of an attaint. ^- ^.' "P<*°

error of a judgment in C. B. in Ireland, which was affirmed in B.R. there j and it was said, the
proper method had been, to demur to the evidence. Firfc Show. P. C. 120. 122, &c. That
if the evidence allowed be not believed by the jury, no bill of exception lies.

780

BILL OF EXCEPTIONS.

Cro. Car. 341
Cort and the
Bishop of
St. David's,
Jones, 331

wise been
holden, that
it extends
even to the
King's Bench,
on a trial at
bar, though
the proceed-
ings there are
coram rege.
2 Jones, 117.
2 Lev. 237. Skin. 356. 2 Show

2 Inst. 427.
Raym. 182.
S.P. 2 Lev.
237. S. P.
Vide Show.

If one offers to demur upon evidence, and is over-ruled, and !
after judgment a writ of error is brought, this cannot be assigned \
for error, but it is a proper case for a bill of exceptions, and the ,
remedy which the statute in that case appoints.

S. C. by which it appears that a bill of exceptions was tendered and signed. Vide 7 Mod. 53.
where it is said, that if the judge erroneously overrule a matter offered in evidence, though the
tendering of a bill of exceptions be the most regular method, yet it is good cause of a new trial ;
for each party has a right to have his legal witnesses heard, or evidence received by the jury.

2 Inst. 427. My Lord Coke is of opinion, that the statute, notwithstanding

(a) It has like- these words, et si forte ad querimoniam de facto justic. venire fac.
dominus rex recordum coram eo^ extends not only to the Common
Pleas, but to all other courts of record (a), on whose judgments
a writ of error lies to the King's Bench, but also to the county
court, the hundred, and court-baron ; for therein, says he, the
judges are most likely to err; and albeit of judgments given in
them a writ of error lieth not, but a writ of false judgment in the
C. B., yet the case being in the same or greater mischief, the
purview of this statute doth extend to these inferior courts.

R. 147. Burr. S.C. 81.; but con^r. 2 Show. R. 287. A bill
of exceptions lies upon a trial in the Exchequer, though that record cannot be removed in
B. R. but by error will be brought before other justices. 2 Lev. 238.

If one of the justices sets his seal to the bill, it is sufficient;
but if they all refuse, it is a contempt in them all, for which the
party grieved may have a writ grounded upon the statute, com-
manding them to put their seals, c^r.
P. C. 116, where a petition was exhibited to the lords in parliament, to oblige the judges to
sign, and there said, that the proper remedy against them was an action grounded on the
statute, which was to be tried by a jury. ||If a bill of exceptions be sealed by a judge, and he
dies, a icire facias lies against his executors or administrators to certify it. 2 Inst. 428. ||

Although no time be appointed by this act when the justices
shall put their seals, the party must pray the same before judg-
ment : but if they deny it, then may they be commanded after
judgment to put their seals, and then the putting of their seals
after judgment shall be sufficient.

But where a corporation-book was offered in evidence at the
assizes to prove a member of the corporation not in possession,
and refused, and no bill of exceptions was then tendered, nor
was the exception then reduced to writing ; and the trial pro-
ceeded, and a verdict was given for the plaintiff: The court being
the next term moved for a bill of exceptions, it was urged for
the bill, that the law requires quod proponat exceptionem suam,
and no time is appointed for the reducing it into writing, and
the party is not grieved till a verdict is given against him ; and
the same memory that serves the judges for a new trial, will
serve for a bill of exceptions. On the other side it was said,
that this practice would prove a great difficulty to judges and
delay of justice; that the precedents and entries suppose the
exception to be written down upon its being disallowed, and the
statute ought to be construed so as to prevent inconvenience :
besides, the words of the act are in the present tense, and
so is the writ formed on the act. Holt C. J., If this practice
should prevail, the judge would be in a strange condition : he

forgets

2 Inst. 427.

Salk. 288.
pi. 26. Wright
V. Sharp.
HDillon v.
Doe dem.
Parker, 1 Bing.
17. 11 Price
R. lOO.JI

BILL OF EXCEPTIONS. 78I

forgets the exception, and refuses to sign the bill, so an action

must be brought : you should have insisted on your exception

at the trial, you waive it if you acquiesce, and shall not resort

back to your exception after verdict against you, when, perhaps,

if you had stood upon your exception, the party had other

evidence, and need not have put the cause on this point : the

statute indeed appoints no time ; but the nature and reason of

the thing requires the exception should be reduced to writing

when taken and disallowed, like a special verdict, or a demurrer

to evidence; not that they need be drawn up in form, but

the substance must be reduced to writing whilst the thing is

transacting, because it is become a record ; so the motion was

denied.

When this bill is signed, there goes out a scire facias {a) to Vide Lutw.

the judge who signed it (Z>), ad cognosce/idtim scri_pium ,- and the ^^^'^9P'

scire Jficias to the ]u(]ge, and his return with the bill must be 1^92 &c.'

entered on the issue roll and made part of the record, and has the case of

a retrospect if done at the trial ; which is to be removed by Money et al.

writ of error. JsHitP*'* ..

(a) Where the

record is in the same court, there is no occasion for a scire facias ad cognoscend., 2 Jones, 117.

2 Lev. 237., being present to confess or deny their seal. [But the bill of exceptions is in nature

of a writ of error, and therefore cannot be determined in the court out of which the record

issues. Davenport v. Tyreil, 1 Black. R. 675. Searle v. Lord Barrington, 2 Stra. 826. Money

V. Leach, 3 Burr. 1692. But though that court hath no jurisdiction in such case, yet, if a

special verdict be found in the same cause, upon which they pronounce judgment, and that

judgment be right, their proceeding on the bill of exceptions will not alone be a ground for a

court of error to reverse the judgment. Cowp. 501.] (b) If the judge dies, a scire facias lies

Against his executors to, &c. 2 Inst. 428. If the judge denies his seal, the party may prove it

by witnesses. Ibid. Though the party grieved be dead, his heirs or executors may have error

upon the bill of exceptions. Id. 427.

When a bill of exceptions is allowed, the court will not suffer Vent, see,
the party to move any thing in arrest of judgment on the point "^'- 2 Lev.
on which the bill of exceptions was allowed ; having given their ^ j^' ^rif"^g
opinion upon it before ; for his proper redress is by writ of error, court of error
and it is presumed that the court was satisfied in the point when givejudgment
the party tendered his bill of exceptions, though argued in Lev. !" ^^Kn"*^/?^
that it ought to be used as well to prevent as to reverse the judg- ceptions°and'
^^^^'■* are of opinion

that the evidence, though not conclusive, ought to have been received, they will award a
venire de facias de novo. Davies v. Pierce, 2 Term R. 125. But where there is a bill of ex-
ceptions, the court below will not grant a new trial on the very point contained in it. Fabrigas
V. Mostyn, 2 Black. R. 929.] ||The bill of exceptions must first be abandoned. Doe v. Roberts,
2 Chitt. 272. If a party brings a writ of error, and removes the record before he has obtained
the judge's seal to the bill of exceptions, he waives the bill allowed by the judge. Dillon v.
Parker, 1 Bing. 17., 11 Price, 102.; but see Willans v. Taylor, 6 Bing. 512 ||

II If the question is not as to the admissibility of the evidence, 2 Barn. & C.
but whether or not the facts deposed to prove the issue joined, ^^- } ^""^* *
the party should demur to the evidence, and not tender a bill of
exceptions, which will not stop the case from going to the jury.

A bill of exceptions, being no part of the record in the court Gardner r.
below, is not to be included in the taxation of costs there. And ?**p'?i' ^^°'*
where in case the plaintiff recovered a verdict, and had judgment ggu y. Potts,
in the Court of Common Pleas, and on a bill of exceptions 5 East R. 49.

returned

782

BOROUGH-ENGLISH.

returned into the Court of King's Bench judgment was re-
versed, and the plaintiff took nothing by his writ, the defendant
was held not entitled to costs. ||

BOROUGH-ENGLISH.

Litt. $ 165.
Nov, 106.
It is called
Borough-En-
glish, because,

T5 OROUGH-ENGLISH is a custom which prevails in certain
ancient boroughs, by virtue of which the youngest son shall
inherit his father as to the lands of which he is seised in fee-
simple or fee-tail. The reason of this custom seems to be (a),

as some hold, that in these boroughs, people chiefly maintained and supported

it first pre- themselves by trade and industry ; and the elder children being

^land *Co "' P^'ovided for out of their father's goods, and introduced into his

Litt. 110 b. trade in his life-time, were able to subsist of themselves without

Litt. §211. any land provision, and therefore the lands descended to the

f fn\^^ ^* youngest son, he being in most danger of being left destitute.

have told us, that the reason of this institution was, because the lord demanded the first night
with the bride, so that they thought the eldest not legitimate. Preface to 3 Mod. R. [But this
reason is rejected; for though, perhaps, sufficient to exclude the eldest, it would only, if taken
in its full force, convey the inheritance to the second son, as the next worthy, and not to the
youngest. This barbarous custom Sir W. Blackstone thinks, never prevailed in England,
though, he saith, it certainly did in Scotland, (under the name of mercheia, or marcheta,) till
abolished by Malcolm IIL Mr. Robinson, however, tells us, that it prevailed here, in several
manors in the northern counties, in which a fine is now paid as a commutation for the right ;
though he acknowledges that the custom of borough-english doth not particularly obtain in
those manors where such fine is paid. Rob. on Gavelkind, Appendix. It should be observed,
that in Scotland, it was the fine paid by way of commutation for the exercise of the right, not
the right itself, which was called marcheta ; Skene verbo Marcheta. Buchan. Hist, of Scot,
lib. 7. And the same term is well known in our law, for a fine due to the lord on the marriage
of the son or daughter of his villein. Co. Litt. 117 b. 140 a. Bract, lib. 2. f. 26. And a
late ingenious writer hath thought, that the viercheta of the Scots is merely British, and nothing
more than the Merch-ed of Howel Dha, the daughterhood, or the fine for the marriage of the
daughter. Whitaker's Hist, of Manchester, vol. 1. 359. Sir W. Blackstone deduceth the
origin of this custom from the Tatars, among whom, according to Father Duhalde, it also
prevails. 2 Black. Com. 85.]

[There is no difference between the law concerning copyholds
in borough-english, and freeholds in borough-english, as is agreed
in Cro. Car. 411.]

If land in borough-english be given to A. and his heirs for
the life of B., and A. die in the life of B. leaving two sons, the
youngest shall be the special occupant, because the heir that is
representative of the father, as to land of that nature, must be
the occupant, since the heir must take by descent, and not by
purchase.
3 Keb. 475. 486. 498. But he takes as heir. 2 Vern. 226. Vaugh. 201.

Co. Litt. 110 b,
1 Salk. 244.
per Holt,
and S. P. re-
solved be-
tween Baxter
and Dodswell.
[2 Lev. 158.

Rob. Gavelkind, 97.]

Co. Lit. gy ^jjg custom of borough-english, the widow shall have the

FN B 150. whole of her husband's lands in dower, which is called her free-
bench ;

BOROUGH-ENGLISH. 783

bench ; and this is given to her the better to provide for the ^^ p..
younger children, with the care of whom she is intrusted. j^qq^ pj ^gg^ *

She shall have dower of rent common out of lands in gavelkind, borough-english, &c. for these
ensue the nature of the land. Bro. Custom, 44. 58. The husband shall be tenant by curtesy
of borough-english land. Vide head of Curtesy of England.

For a condition broken, the heir at common law shall enter, Cro. Eliz. 204.
because the condition is a thing of new creation, and collateral ^j^l^^'i c
to the land ; but when the eldest son enters, the youngest son Gavelkind.
shall enjoy the land ; for by breach of the condition he is restored
to the ancient estate.

The benefit of a warranty annexed to lands in borough-english Vide head of
shall not go to the youngest son. Warranty.

If a man be seised of land of the nature of borough-english, Co. Lit. 242.
and have issue two sons, and die, and the eldest son, before any
entry made by the youngest, enter into the land by abatement,
and die seised, this shall not take away the entry of the youngest
brother, because the eldest shall be presumed to enter to preserve
the estate in his family, which he or his heirs may some time or
other, upon failure of his brother's line, happen to enjoy.

If a man seised of borough-english lands make a feoffment in N.Dyer, 179
fee to the use of himself and the heirs male of his body {secun- ^^^
dum cursum communis legis), and die, leaving issue two sons, the
youngest, notwithstanding the feoffment and these words, shall
inherit those lands.

The law takes notice of the customs of gavelkind and borough- Co. Lit. I75b.
english (a); and therefore it is sufficient to allege generally, that "\ " j^ °
the lands are of the custom of gavelkind or borough-english. gg are no part

thereof, but merely collateral, they must be shewn in pleading , as that the lands are de-
visable, &c. ; but for this rirfe Cro. Car. 562. 2 Sid. 154. Sid. 77. 138. Lev. 80. Raym. 77.,
and tit. Gavelkind, [As to the special customs, some of them restrain, and others extend the
general custom. Of the first sort are, 1. The custom of a manor in the duchy of Cornwxdly
that an estate in fee in the lands shall go to the eldest son ; but if in tail, the tenements shall
descend to the heir at common law; and this was holden a good custom in the case of Chap-
man and Chapman, March, 54. 2. In 32 E. 3. Age, 81., it is pleaded, that in the soke of J?.,
if a man has several sons by one wife, the youngest shall inherit after the death of the father:
but if he has two sons by different venters, the eldest shall inherit to the father, and not the
youngest ; and this custom is there allowed good. Co. Lit. 140 b. Those more extensive than
tile general custom are, 1. That if the tenant has no sons, but several brothers, his youngest
brother shall inherit. Co. Lit. 110 b. 2. That the youngest sister shall inherit. Co. Lit.
J 40 b.] — For other customs in the nature of borough-english, vide tit. Descent'^)^ and
Co, Lit. 1 10. Dan, 548, 5\9.

\{ A. hath issue five sons, and the youngest dies in the life-time Salk 243. pi. 4.
of the father, leaving issue a daughter, after which the father Clements and
purchaseth lands in borough-english, and dies, the daughter of Scudamore,
the fifth son shall, jure reprcsentationisy inherit those lands, and g y^Q^ 120.
not the fourth son. S. C. ad-

judged. 2 Ld. Raym. 1024. S. C. 1 P. Wms. 64. S. C.

[The youngest son, it hath been determined, shall have his Lutwyche v.
whole distributive share of the personal estate of his father dying Lutwyche,
intestate, without bringing into hotchpot an estate of the nature ^^}^^^216
of borough-english descended to him from his father ; for that
such estate descended is not within the statute of distributions.]

BRIDGES.

[ 78* ]
BRIDGES.

[The 'l^P^''^." "pUBLIC bridges, which are of general conveniency, are, of
bridges was "^ common right, to be repaired by all the inhabitants of that

part°ofthe county in which they lie.

trinoda necessHas^ to which, by the ancient law, every man's estate was liable^ viz. expediiio
contra hostem^rcium constructio, et pontium reparatio. So in the Roman law, ad instruciiones
reparationesque itinerum et pontium, nullum genus hominum, nulliusq. dignitatis ac vencrationis
mentis, cessare oportet. C. 11. 74. 4.] 10 E. 3. 28. Roll. Abr. 368. 2 Inst. 701. 13 Co. 53.
Hale P. C. 14 3. Cro. Car. 365. [The obligation to repair being upon all the inhabitants of a
county, it follows that they are not liable to an action at the suit of an individual, for an
injury sustained by him in consequence of a bridge being out of repair. 2 Term R. K. B. 667.]
IIA bridge may be a public bridge, though only used by the public at all such times as it is
dangerous to pass through the river. 2 Maule & S. 262.||

Rex v.Eccles- ||But a hundred or parish, or any known portion of a county,
^ r i- '^"' "flay by usage and custom be chargeable to the repair of a bridge
13 East 97. erected within it. And there is no distinction as to the liability,

whether the bridge be a foot, horse, or carriage bridge. ||
Hale's P. C. But a corporation aggregate (a), either in respect of a special

143. Dalt. tenure of certain lands, or in respect of a special prescription ;
h H* If ^^^ ^"^ other person by reason of such a special tenure, may be
mVbe'bound compelled to repair them.

either ratione tenwa^sive prcsscriptionis. 2 Inst. 700. 13 Co. 33. jjAs to the evidence of a
prescriptive obligation in a corporation to repair, see The King v. The Mayor of Stratford-
upon-Avon, 14 East, 348. II But a private person, though he may be bound ratione tenurcB,
is not bound ratione prcBscriptionis. Vide Hawk. P. C. 221. Faresl. 54. 98. Salk. S.CS. pi. 5.
3 Salk. 77. 381. pi. 3. 6 Mod. 150. If a bishop, &c. hath once or twice of alms repaired a
bridge, this binds not ; yet it is evidence against him that he ought to repair, unless he proves
the contrary. 2 Inst. 700. ||If a party is indicted as liable to repair a bridge ratione tenurce,
and it appear that the tenement (a mill) originated within time of legal memory, the indictment
cannot be sustained. Rex v. Hayman, 1 Moo. & Mai. 401. ||

Rex v. Ker- || An indictment charging a person with the repair of a bridge

«'^c"' ^„ by reason of his being owner and proprietor of a certain navigation,

* ^ ■ is erroneous, since these words are not equivalent to the technical

phrase ratione tenurce, importing a condition in the original grant
of the lands, and if judgment be given on such an indictment, it
will be reversed on error.
The King v. If an indictment charge the inhabitants of a parish and town-

Inhabitants of gj^jp ^y^j.j^ (^i-jg repair of a bridge ratione tenures of certain lands,
2 Barn"& C. ^^ vcxnst shew that the bridge is situate within the township, or
166. Where must shew some special consideration ; and the tenure of certain
an indictment lands is not such a consideration, because the inhabitants cannot

is preferred by j^^ij j^nds, and therefore cannot be liable by reason of law.jj
the mhabitants ' •'

of a parish against a county, and the question is, whether the county or parish are liable to
repair, the court will not com[)el the inhabitants of the parish to allow the parties indicted to
ins- ect the parish books and documents. Rex v. Justices of Buckingham, 8 Barn. & C. 375.

Jones, 273. ^^y particular inhabitant or inhabitants of a county, or tenant

elSod. 307. ^^ tenants of land, chargeable with the repairs of a common
12 Mod. 198. bridge, may be made defendants to an indictment for not repair-
ing

BRIDGES.

785

ing it, and be liable to pay the whole fine assessed by the court 409. Lord

for the default of such repairs ; and shall be put to their remedy Raj""!. 725.

at law for a contribution from those who are bound to bear a ^ „ ' ^J ""•

proportionable share in the charge (a) ; for cases of this nature SaUi. 358.

require the utmost expedition ; and bridges, being of absolute pi. 6. ||4 Barn,

necessity, are not to lie unrepaired till lawsuits are determined. * ^- ^^^W

/ . ^ (a) Where the

party grieved may, in such case, have a writ to the justices de deonerando pro rata porUone.
F. N. B, 235. Reg. 268. 2 Inst. 700. Where he may bring his billin equity. Hardr. 131.

If a manor, holden by the service or tenure of repairing a Salk. 358.
common bridge, comes, by the alienation of the lord, into the P'* ^- -^^ ""^'
hands of several persons, every alienee, being tenant of any bar^fiTlf*'
parcel, either of the demesnes or services (b), shall be liable to charged ra-
the whole charges, and put to this remedy for a contribution ti^me tenures of
from the rest ; and though the lord, on such alienation, agreed ^ "lanor, the
that the purchasers should be exempt from the charges, yet holders and
however binding such agreement might be among themselves, copyholders
it shall not work a general injury, by making the remedy the are not liable

public had more difficult than it was before. i^ contribute;

lor nothmg is

f>art of the manor but the demesnes and services; but those who have any part of the demesne
ancis by purchase must contribute. Hard. 151. per cur. 2 Ld. Raym. 792. 804. [A tenant at
will of a house adjoining to a common bridge, is compellable, in respect of his possession, to
- repair the house, so as the public sustain no injury by it, though he is not bound to repair as to
his landlord. 2 Ld. Raym. 856.]

So if a manor subject to such charge comes into the hands of Salk. 358.
the crown, yet the duty upon it continues; and any person pl« • • J'^*" cwr.
claiming afterwards under the crown, the whole manor, or any
part thereof, shall be liable to an indictment or information, for
want of due repairs.

II If a man build a bridge in a public way without utility, it is 2East,S48.;
, indictable as a public nuisance ; and so it is if built in a slight ^"^^^®
and incommodious manner, for no person can at his choice
impose such a burden on the county. ||

If part of a bridge lie within a franchise, those of the fran- 1 Hawk. P.C.
chise may be charged with the repairs for so much; also, by a ?• 77. § 1.
special tenure, a man may be charged with the repairs of one ^^^J'''-'^'*'
part of a bridge, and the inhabitants of the county are to repair
the rest.

It hath been resolved, that it is not sufficient for the defendants
to an indictment for not repairing a bridge, to excuse them-
selves by shewing that they are not bound either to repair the
whole, or any part of the bridge, without shewing what other
person is bound to repair the same; and it is said, that in such
case the whole charge shall be laid upon such defendants, by
reason of their ill plea.

II If the defendant plead diat A. B. is liable to repair the bridge Rex v. Inha-
ralione temircc^ this plea will not be supported by shewing that giants of
A. B. purchased part of the estate of C. D., who had iinnie- iq'^^i ^is.
morially repaired the bridge, and who continued to repair after
the sale to A. B.

On an indictment for not repairing where the question is, i^^x v. Inha-
whether the bridge is or is not a public bridge, the defendants bitants of

Vol. I. 3 E may

43 G.3.

$5.

0.59.

1 Hawk. P. C.

C. 77. § 4.
Poph. 19S.

786

BRIDGES.

Northoirpton- may on the general issue give evidence that the bridge has been

ghire, 2 Maul, repaired by private individuals. ||

It is said, that wliere such defendants plead that A. B. ought
to repair the bridge mentioned in the indictment, and take a
traverse to the charge against themselves ; the attorney-general,
in this special case, may take a traverse upon a traverse, and
insist that the defendants are bound to the repairs, and traverse
the charge alleged against A. /?., and that an issue ought to be
taken of such second traverse ; and that the attorney-general may
afterwards surmise that the defendants are bound to repair it,

, . - and that the whole matter shall be tried by an indifferent jury.
It IS, whether *'

for carts and carriages, or for horses, or for footmen only. 2 Ld. Raym, 1175. Where the
obligation to repair ariseth from the tenure of certain lands, the indictment must state where
those lands lie. ------

& S. 262.

Hawk. P. C.

e. 77. § 5.
Sid. 146.
2 Lev. 112.
[An indict-
ment for not
repairing a
bridge, must
shew what
sort of bridge

2H.H. P.C. 181.]

It seems clear that those who are bound to repair such bridges,
must make them of such height and strength as shall be answer-
able for the course of the water, whether it continues in the old
channel, or makes a new one ; and that they are not punishable
as trespassers for entering on any adjoining land for such pur-
pose, or for laying on the materials requisite for such repairs.

II "Whether those who are bound to repair a bridge are bound
to widen it as the exigencies of the public require, does not

45 Ass. pi. 37.
Bro. tit. Pre-
sentments in
Courts, pi. 22.
29. Dalt. c. 14.
Hawk. P. C.
c. 77. § 1.

The King v.

Inhabitants of

Cumberland, , . . -,

6Term.R.i94. appear to be determined.

3 Bos. & Pull
3.54. 2 East,
353.

43 G. 3. e.59.

Where parties bound to repair a foot bridge alter it into a

carriage bridge, they are still bound to repair it po rata as a

foot bridge.

But now by the 43 G. 3. c. 59. where any bridge, or Toad at

the end thereof, repaired by the county, shall be narrow and

incommodious, it shall be lawful for the justices at any quarter

sessions, to direct the same to be widened, improved, and mad

ccmm.odious for the public ; and where it is necessary or ex

pedient to take such bridge wholly down, such justices ma;

direct the same to be rebuilt, either on the old site or one mor

convenient, contiguous to or within two hundred yards of th

former one, as to such justices shall seem meet ; and if for sucl

purpose it is necessary to purchase land, it shall be lawful foi

the county surveyor, under such justices' direction, to set out and

ascertain the same, not exceeding one acre at any one such

bridge, and to contract for the purchase thereof (a); and if the

lices of Z)orsc^ surveyor cannot agree with such owner, or the owner cannot be

thil'sfatute^'^ found, then the justices shall impannel a jury and assess the

contracted for compensation and satisfaction for such land, and for the trespass

the building of and damage to be done in execution of the act, in the same way

a new bridge as authorized by the general turnpike act 13 G. 3., and all the

clauses, powers, and' provisions of that act are extended and

applied to the works by this act authorized, as far as the same

are applicable ; provided that no money shall be applied to the

amendment or alteration of any such bridge, until presentment

made of the insufficiency, inconveniency, or want of reparation

thereof in pursuance of some statute concerning bridges. 1|

the new one was passable, for the benefit of the old materials, tiie court refused a prohibition

(a) The jus-

in a different
site, in lieu of
the old one,
and having
directed the
old bridge to
be taken
down before

BRIDGES. 787

to restrain them.from pulling down the old before the new bridge was passable, thongh there
were strong affidavits of the inconvenience to the neighbonrhood, the court leaving the com-
plainants to the ordinary remedy by indictment. Rex v. Justices of Dorset, 15 East R. 594.
The powers of the 43 G. 3. c. 59. § 2., as to the purchase of lands, are extended to the pur-
chase of buildings by the 54 G. 3. c. 90. §\.

No inhabitant of a county ought to be a juror for the trial of 6 Mod. 307.
an issue, whether the county be bound to such repairs or not; [(*) He is
but it is said, that he may be a good witness, (b) i^AnV^ta^ 1

c. 18. $ 13. Upon a suggestion on the record, that the question was between the citizens of
Norwich and the inhabitants of the county oi Norfolk ; and they being interested, there could
be no indifferent trial had there ; the court awarded the venire for the trial of an information
for not repairing a bridge within the boundaries of the county of the city of Norwich into
Suffolk. And the trial in Suffolk was ruled to be proper by three justices against Fortescuei. ;
though the defendants had pleaded only the general issue. Stra. 177. And if the justices are
all interested, the trial shall be in the next county. 2 Burr. 859. If the boundaries of a city
are enlarged by letters patent, the obligation to repair bridges upon the newly annexed lands,
passeth with those lands. Stra. 177.]

No man can be compelled to build or contribute to the charges 2 Inst. 7ou
of building any new bridge, without an act of parliament; nor Garth. 193.
can the inhabitants of the whole county, by their own authority, n ^^'^J'
change a bridge or highway from one place to another. Charta, c. 15.

no town or freeman shall be distrained to make bridges nisi ab antiquo et de jure facere con-
sueverimt, which vide explained, 2 Inst. 29.

If a man makes a bridge for the common good of the king's ginst "Oi
subjects he is not bound to repair it. Roll. Abr.368.

iJSee the record in the Stratford Bridge Case, in 8 Edw. 2., 2 Maule Sc S. 521. and the remarks
of Ld. Ellenborough, Id. 519. and infra.\\ If a private person builds a bridge, which after-
wards becomes a public conveniency, the inhabitants of the county are bound to repair it.
Salk. 359. pi. 7. 6 Mod. 307.

[Where an owner of a mill cut a channel to it across the high- Roll. Abr. 368.
way, and threw a bridge over that part of the highway which pi. 2. Com.
was so cut through, which bridge was used as a public bridge; ^IS- /„; ^
it was adjudged tnat the repair of it lay upon him. But where s^Burr. 2594.
a township tliat were bound to repair a foot-bridge, pulled down 2 Bhick. R.
that bridge, and built another for horses and carriages in a 685.
different and more commodious part of the river; and this bridge
became afterwards of general public utility ; it was holden that
the county, and not the township, ought to repair it. In this
latter case, besides that the bridge was of a diffa-ent kind, and
in a different situation, from that which the township were origi-
nally charged with the repair of, it did not appear that they
derived any greater or other advantage from it than the public
at large ; but in the former case, the bridge was erected in con-
sequence of the new cut which the owner of the mill had made,
which cut was a public nuisance, and was merely for the par-
ticular accommodation of his mill, so that he received benefit
from the bridge beyond that which the public enjoyed by it.
This distinction was made by Lord Kenyoiif in the case of the Summer as-
Kijig v. The Inhabitants of Glamorganshire. To an indictment ^'^^s »'^'^*-
against the county for not repairing a bridge, they pleaded that •'"'^ '
it had been built by a Mr. Machaorth for his private accommo-
dation, in order to lead to his tin mines ; and that the present
proprietor of those mines still made use of it for that purpose.

3 E 2 But

788

The King v.
Inhabitants of
Bucks, 12 East
R. 192.

Rex V. Inhabit-
ants of Ox-
fordshire,
1 Barn. &
Adol. 289.

Rex V. West
Riding of
Yorkshire,
2 East, 342.

The King v.
Inhabitants of
Kent, 2 Maiile
& S. 513. Ail
question as to
the liability of
the county or
the erecter of
a bridge to re-
pair it seems
removed as to

BRIDGES.

But as there was no evidence that the MachioortJi family had
(lone any thing which induced the necessity of erecting that
bridge, and as it was become of public utility, the learned judge
ruled, that the county was bound to repair it, notwithstanding
that it still continued to be a benefit to the present proprietors
of the mines.]

II Every bridge in a highway is taken to be a public bridge
within the statute of bridges, and is to be repaired by the
county, unless they shew by plea that some other person or
body politic or corporate is liable. And therefore, where queen
Anne, in 1 708, for her greater convenience in passing to and
from Windsor Castle, built a bridge over the Thames at Datchet,
in the common highway leading from London to Windsor, in
lieu of an ancient ferry, with a toll, which belonged to the
crown ; and she and her successors maintained and repaired the
bridge till 1796, when, being in part broken down, the whole
was removed, and the materials were converted to the use of
the king, by whom the ferry was re-established as before ; it was
held, that the inhabitants of the county of Bucks, who were in-
dicted thirteen years after the pulling down of the bridge, during
which time the public had used the ferry, were still liable to re-
build and repair the bridge, since it was a public bridge used by
the public, and they could not throw the burden on any other i
party. |

The county is bound to repair bridges over such water only
as answers the description o^ Jliimcn vel cursus aqua,- that is,
water Rowing in a channel beiween banks more or less defined,
although such channel may be occasionally dry. And therefore,
where the road by which a bridge was approached, passed
between meadows which were occasionally flooded by a river,
and for convenient access to the bridge a raised causeway had
been made, having arches or culverts at intervals for the passage
of the flood-water, which were equally necessary to the safety of
the main bridge and the causeway ; it was held, that the inhabit-
ants of the county were not bound to repair such arches being at
a distance of more than 300 feet from the end of the main bridge.

And though a bridge is built by trustees, under the powers of
an act of parliament, which authorizes them to raise tolls for
support of the roads, still, if it be of public utility and used by
the public, the inhabitants of the county must repair it, the act
making no special provision for transferring the liability, or
exonerating the county from it.

And accordingly, where a person, forty-five years back,
erected a mill and dam for his own use and profit, per quod he
deepened the water of a ford through which there was a public
highway, but the passage through which was, before the deep-
ening, very inconvenient at times to the public, and the miller
afterwards built a bridge over it, which the public had always
since used ; it was held, that the county, and not the miller, was
chargeable with the repairs.

bridges erected since 24th June 1803. by the 43 G. 3. c. 59. § 5. which provides

that

BRIDGES. ^gg

that no bridge thereafter to be built by any individual or body corponte ■hall he
county bridge which the county is compellable to repair, unle$» elected in a i
manner, under the direction or to the satisfaction of the county surveyor or penott -.---
by the justices at sessions, and which surveyor is required to superintend the acSMaTta
bridge when requested by the party desirous of erecting the same ; and in caw the «— t—
shall be dissatisfied the matter shall be determined at the sessions. '^""

So also, where the county, in answer to an indictment for not Rex t.
repairing a bridge, pleaded that, by a certain act of parliament of 0*oo,
for amending the road, trustees were directed to lay out the tolls p^*™" *
thereby granted in repairing the roads, and were emjwwered to ' **^*
make and repair bridges, that the trustees under the act erected
the bridge in question, and that they were liable and ought to
repair ; it was held, that the bridge being built for public pur-
poses, the common-law liability to repair attached on the county,
and that the plea was insufficient to exonerate them, since it did
not state that the trustees had funds adequate to the repairs;
and even if it had done so, it seems it would have been in-
sufficient, since the county were primarily liable, and must take
their remedy against the trustees.

But where a navigation company were empoweretl under a The KiwMr.
local act to make a river navigable, and take tolls, and amend I«»W>.onM«t,
and alter such bridges or highways as might hinder the passage nniico TTib
or navigation, leaving them others convenient in their room, Kimtt. Uhabb
having destroyed a ford across the river in the common highway otunimf,
by deepening its bed, and having built a bridge there, they /^^"h^Jr.
were held bound to keep such bridge in repair; for they were ,on,sMauk
only empowered to take and alter the old highway, on condition & S. 5««.
of leaving another passage as convenient in its room, and the
condition continued and obliged them to repair it.

And where an act of parliament appointed trustees for taking The j^'JJ J* ,
down the old and building a new bridge over the river Tom, ^^^J^^ ' *
and empowered them to take tolls, and that it should be lawful ifE^toi,
for them, out of the monies received, to build a new bridge, and
vested the property in the old and new bridge, during the con-
tinuance of the act, in the trustees, and that as soon as the
purposes of the act should be executed, then and from thence-
forth the tolls should cease, and the bridge should be repaired
by such persons as were by law bound to repair the old bridge;
it was held, that during the time the trustees were engaged in
executing the powers of the act until they were completed,
the county was not liable to repair the bridge. ||

[Justices at sessions cannot make an order for the repair of a , 8aft.M^
bridge, but must proceed by indictment.] -ii. J«G » c.iSlV.'ii

II And the sessions cannot impose more than one fine on a ^^"Jjj^
judgment on an indictment for not repairmg, the punishmeni ^b«.AA.
beinginflictedbythefirstfine.il <♦»•

[Nor can they make an assessment ui>on a hundred, for re- g^^^^jj^
imbursing two of the inhabitants the expenses llicy ••'f"'^ "V ^i.,^
being distrained to appear and defend an indicUueul lor WH
repairing a bridge within the hundred.] „

790

BRIDGES.

(a) Unless the
justices of the
peace of a
county or
town, &c. be
four in num

id) Viz. shall
make a dis-
tinct tax on
each house-
holder living
in the county
and each oc-
cupier of land
lying in the
county, whe-
ther he dwell
in it or not ;
and whether
such house-
holder or oc-
cupier be a

though he
claim an ex-
ception by a
prior act of
parliament.
2 Inst. 703,
704. Keb. 91.
Note — This
method of tax-
ation, and rais-
ing money
taxed, seems
by 1 Ann.
Stat. 1. c. 18.
quod vide.

By the 22 H. 8. c. 5., « the justices of peace in every shire,
" franchise, or borough, or four of them (a), whereof one to be
" of the quorum, may enquire and determine, in their general
" sessions, of annoyances of bridges broken in the highways (6),
" and make such process and pains on every presentment,
ber,andoneof « against the persons charged, Sfc, as the King's Bench is ijsed
them of the « ^.^ ^j ^^ ^^ j^ g|^,^U ^^^^ ^ j.| j^ discretions to be necessary
quomm, they ,, ^ . ,■> '^

have no man- and convenient."

ner of jurisdiction by virtue of this statute. 2 Inst, 701, 702. But it is said, that the justices
of the peace of the county, in which such town, being not a county of itself, and wanting such
a number of justices, shali lie, may, by virtue of this clause of the statute, determine all annoy-
ances of bridges within such town, &c. if it be known what persons in certain are bound to
repair the same; but if it be not known, it seems that such annoyances are left to the remedy
of the common law ; because the clause, which in such case authorizes the justices of the
peace to tax all the inhabitants, seems expressly to confine the power of taxing the inhabit-
ants of such town to their own justices. 2 Inst. 704. Hawk. P. C. c. 77. § 15. (A) This
statute extends to bridges in the highways only. 6 Mod- 255, 256. Salk. 559. pi. 8. 2 Ld.
Raym. 1174. But justices of peace are said to have jurisdiction over nuisances to other com-
mon bridges, by virtue of 1 Eliz. c. 3., and the general words of the statute of Edw. 5. c. 10.
Vide 2 Hawk. P. C. c. 8. § 39.

" And where it cannot be known who ought to make such
" bridges decayed, they shall be made by the inhabitants of the "
" shire, city, or town corporate wherein they shall be (c) ; and
" if part shall be in one shire, <§c., and part in another, the
" inhabitants of each shall repair and make such part as lies
" within their respective limits.

tribute to the repairs of a county bridge. I Hawk. P. C. c. 77. $ 19. Vide Skin. 254. pi. 2.

•

** And for speedy reformation of such bridges, the justices of
" peace of such shire or town, or four of them, whereof one
" to be of the quorum, may call before them either the con-
" stables, or else two of the most honest inhabitants of every
" town and parish, and with the assent of the said constables or
" inhabitants, may tax every inhabitant within their limits {d\
" in such sums as may be thought convenient ; and shall cause j^
'* the name and sums of each person to be written on a roU ' "
" indented, and shall have power to make two collectors of
" every hundred for the collection of such tax ; which collectors
" receiving one part of the roll indented, under the seals of the
" justices, shall have power to collect all the sums therein con-
" tained, and to distrain those who shall refuse to pay; and the
n^turah'and"^ " ^ame justices, or four of them, may also name two surveyors,
" who shall see every such decayed bridge repaired from lime
" to time, to whom the said collectors shall pay the said sums
" by them received ; and the collectors and surveyors, and their
" executors, shall from time to time make a true account to the
" justices, or four of them, whereof one of the quorum, of their
" receipts, payments, and expenses ; and if any of them shall
" refuse that to do, the same justices, or four of them, may
" make processes against them by attachment under their seals,
" returnable at the general sessions ; and, if they appear, may
" compel them to account, or else, on their refusal, may commit
" them quotisquc.

« And,

BRIDGES. -«)91

« And it is further enacted, that where the bridge is in one No
shire, and the person bound to amend it in another, or where be «
the bridge is in a town corporate, and the person bound to * ^. .
repair it out of it, the justices of such shire or town corporate wt^MtldM
may enquire and determine all such annoyances within their pttamaMM
limits; and on a presentment may make process against such pfthe^»4
persons ; and do further in every behalf, in every such case, J*"^* mtSJi.
as they might do by the said act, in case that such persons 59G.S. c. i«.
were in the same shire, Sfc. ; and all sheriffs and bailiffs of § 5 J Jmticat
liberties shall serve such proces.s, on pain to make such fine of^\

as shall be set by the said justices. "JSLE?**

grounds for enlarging bridges. As to statutes relative to particular bridgei. Me the Tanw U

the Statutes, title Bridges. IJSee the statutes, ^o*f.||

" Provided, that nothing in this act shall be prejudicial to
*' the liberties of the five ports; but that the warden, mayors,
" bailiffs, and jurats of the same ports, may enquire and deler-
*' mine all annoyances of bridges therein, and make such pro-
*' cess, 4'C' as the justices of peace may do in other places, by
" virtue of the said act.

" And it is further enacted, that the said justices, SfC. may allow
*' such reasonable costs and charges to the said surveyors and
" collectors, as by their discretion shall be thought convenient.

" And it is further enacted, that such parts of highways as
« lie next adjoining to the ends of bridges by the space of :}00
" feet, shall be amended as often as need shall require ; and thai
« the justices, or four of them, whereof one of the quorum^
" within their several limits, may enquire and determine in their
" general sessions all annoyances therein, and do in every thing
" concerning the same, in as ample a manner as tliey may do for
" making and repairing bridges." 1 1 r tat

II The obligation on the county to repair newly erected public RoT;^**
bridges extends also to the 300 feet of highway at the ends of f2?7 -
the bridge, and they cannot discharge themselves from rcpainnff j^^^

such portion of the highway any more than the bridge itsell, ^ y^ JJ

unless they shew by special plea that some other is bound by ^. iTmm.
prescription or tenure to repair the same. . , •

But though the county repairing a bridge is bound to repwr r^ ». Dm.
the 300 adk)ining feet of road, notwithstanding ihcy mav be Mh-i,4n.
situate in another county, yet if anodier bridge is erected on
those 300 feet, and adopted and used by the county where il U
situate, they are liable to the repair of it ; since the new bridge tt
not to be considered an appendage to the old one, 111 the Mm
manner that the 300 feet of road were under the slat ol II. »•
beforethenewbridgewaserected.il -^«,, „ « :< ma.

[By Stat. 1 Ann. sess. 1 . c. 1 8. the act of 2« H. 8. c 5. « eoiH

firmed, except where altered by this act.

By §2. Justices at their general or q"^'^' •^•^T^JJ^ O^'
power upon preferment that any bridge is out of «pwr w^« ^t-
[heir commissions («), which by them ought to be repimi, W M^
lay such sum on every parish as it hath usually ^{f? ■TTT j^ J^
towards the repair of such bridge (6), which shall be leirtWig

;} K ♦

792

BRIDGES.

ment to be a
public bridge,
and out of re-
pair; and tliis
must appear
upon the face

the constables of each parish, or such other persons as the
justices shall appoint, and by them in six days after tl;e receipt
thereof paid to the high constables, who are to pay it over in ten
days to the persons appointed by the sessions to be treasurers. —
On nonpayment in ten days after demand, the money to be levied
of the order of by distress and sale. i

assessment ; J

but it is not necessary that the jury should present by whom the bridge ought to be repaired
Andr. 285. {b) A general rate by the sessions on the several [)arishe3, &c. with orders to the
churchwardens, &c. to assess the inhabitants, is sufficient. Id. 101.

§ '• §3. Constables neglecting to assess, collect, or pay the money,

to forfeit forty shillings, and treasurers paying any money but by
order of justices at sessions, to forfeit five pounds.

§ 4. Fines imposed upon presentments or indictments not to
be returned into the Exchequer, but to be paid to the treasurers,
and applied tovi^ards the building or repairing of the bridges.

§ 5. All matters concerning the repair of bridges to be deter-
mined in the county where they lie, and not elsewhere : and no
presentment or indictment for non- repair of bridges and the
highways at the end thereof, to be removed by certiorari, (c)
bound to repair ; for where a private person, or a parish, is charged, and the right will come
in question, the stat. of 5 & 6 W & xVl c. 11. hath allowed the granting of a certiorari,
1 Barnard. 445.

§ 6. Justices to allow a sum not exceeding three pence in the
pound to persons concerned in the execution of this act.

§ 7. Persons prosecuted for any thing done by them under
this act to plead the general issue, and give this act, and the act
of 22 H. 8. c, 5., and the special matter, in evidence ; and upon
the plaintiff being nonsuited, or having a verdict against him, to
have double costs.

§ 8. This act not to discharge particular persons, estates, or
places heretofore liable to the repairs of any bridge.

§ 9. All forfeitures and penalties incurred by this act to be
applied towards repairs.

§ 1 3. In all informations or indictments the evidence of the
inhabitants of the town or county in which decayed bridges or
highways lie, shall be admitted.

By 12 G. 2. c. 29. § 13., no part of the county rate to be levied
by that act shall be applied to the repair of any bridges, but
upon presentment of the grand jury.

By § 14. Justices at their general or quarter sessions {a) may
(a) Where the contract for the repairs of bridges for any term not exceeding
justices at seven years, the contractor giving security for the due perform-
sessions ap- ^mce of his contract, and the justices giving notice at their ses-
comn^ittee of sions of their intention of entering into such contract. The
magistrates to contract to be made at the lowest price proposed, and when
inspect the agreed to, to be entered, together with all orders relating thereto,
state of a \^ r^ book to be kept by the clerk of the peace, Sfc, who shall

' ^ - ' keep it among the records of the county, Sfc.^ to be open to tlie
inspection of any of the justices within the limits of their com-
missions, and by persons employed under this act, without fee or
reward.

$4.

§5.
(c) This act ex
tends only to
bridges which
the county is

2 Stra. 900
§6.

§7.

§8.

§9.
§ 13.

12G. 2. c. 29.
§ 13. ||See
55G.3. c. 143.
§5.||
§ 14.

r.nd to make
any contract
for repairing
or re-building,

to be executed

by the clerk of the peace on behalf of the county; and afterwards made an order adopting a

coutratt

BRIDGES. 793

contract for re-building, proposed by the committee, and directed to be prepared by the derii
of the peace ; which contract was thereupon executed by the clerk of ttie peace ; imd tke
justices, at a subsequent sessions, confirmed all the resolutions of the conmrittee : the acts of
the committee, so confirmed, were the acts of the sessions, and the aatfaority ^ifcn to the
committee, and so exercised by them, was not such a delegation of power by the ttaaoot as
int-alidated their order. 5 Term R. 279.

By 14- G. 2. c. 33. Justices at their general or general quarter 14G. a. ess.

sessions are empowered to purchase lands near to any county ^^^5i--_
bridge (flr) for the purpose of enlarging or rebuilding such bridge, UnSTSS?
not exceeding one acre for each bridge, which land shall be edly give* the
paid for out of the monies raised by the county rate under the power of alter-
12G. 2, by the county treasurer thereto authorized by order 'pgthepoa-
under the hands and seals of the majority of the justices at bridge to suit
sessions, and shall be conveyed to such person or persons as the conveni-
the majority of the said justices at such sessions shall appoint, ency ofthe
in trust for the enlarging or rebuilding of the respective P"°"*^ 5 Term
bridges.]

II By the 43 G. 3. c. 59. § 1. it shall be lawful for the surveyors 43G.5. c59.
of bridges and other public works, appointed by the justices at § ^'
the general quarter sessions, to search for, take, and carry away
gravel, stone, Sfc. for the repair of such bridges and roads at the
end thereof, as the county repair, and to remove obstructions and
annoyances from such bridges and roads in the same manner
as sur\eyors of the highways are by the 1 3 G. 3. authorized to
do ; and the powers and authorities thereby vested in the sur-
veyors, and the penalties, matters, 4"C. in the said act contained
relating to highways, are extended and applied, as far as the same
are applicable, to such bridges and roads at the end thereof, the
said surveyors making satisfaction and compensation, S^c. in the
same manner as they are required by the said act. (For § 2.
see arUe, p. 786.)

By § 3. the property in all tools, timber, materials, ^c. pur- * ^^
chased or gotten by order of the justices, or belonging to such (i) If jf. grant*
counties, shall be vested in the surveyor for the time being, in licence to J?, to

whom, upon any action or indictment, the property may be ^'"'^ ? bridge
1-,:,! /A^ r r J J onhisland,and

i^^^'i^) ^.covenants

to build it for the public use and to repair and not demand toll, the property in the materials
when built and dedicated to the public, continues in B., subject to the nght of passage by the
public, and when severed and taken away by a wrong doer, B. may bring trespass. Harrison
V. Parker, 6 East, 154.

By § 4. the inhabitants may sue for damage done to bridges § 4.
and other works, and for recovery of property belonging to the
county, in the name of the surveyor, and no action or prosecu-
tion shall abate or be discontinued on account of the death or
removal of such surveyor, or by the act of the surveyor without
the consent of the justices at sessions; the surveyor to be reim-
bursed by the county such costs as he may incur by reason of
being made plaintiff or defendant, and the costs of any such in-
dictment.

By § 6. orders and proceedings respecting county bridges in § 6.
Yorkshire shall be had at the Easter sessions, and no other.

By § 7. nothing therein is to extend to bridges or roads § 7.

which

79i

54 G. 3. C. 90.

55 0.3. C.143.

§5.

(a) The ses-
sions cannot
order the pay-
ment by the
bridge-master

BRIDGES.

which any person or corporation shall be liable to maintain or
repair by reason of tenure or prescription, or to alter or affect
the right to repair such bridges.

By the 54 G. 3. c. 90. the provisions of the above act are ex-
tended to bridges repaired by inhabitants of hundreds, and other
general divisions of counties.

By the 55 G. 3. c. 14-3. it is enacted, that it shall be lawful for
surveyors of county bridges, and bridges repaired by inhabitants
of hundreds, and other general divisions of counties, and also
bridgemasters and persons under contract for re-building or
repairing any public bridge, with consent and by order of two
justices of the county, to search for, dig, get, and carry away any
stone or stones from any quarry within the county, other than
quarries in a garden, yard, avenue to a house, lawn, park,
paddock, or enclosed plantation, or as may have ornamental
trees growing thereon, without the licence of the owner of such
quarry, provided such quarry, has been worked within three
years preceding the time of rebuilding or repairing such bridge ;
the said surveyor or other person making such satisfaction and
recompense for the value of such stone, and also for the damage
done, as shall be agreed on between him or them and the owner
or occupier, or other person interested in such quarry, and if they
cannot agree, then the justices at the general or quarter sessions
shall cause the value to be enquired into by a jury, and shall order
a view, if necessary, and shall order the sum assessed to be paid.

And by § 5. it is enacted, that it shall be lawful for the justices
of any county, city, riding, division, town corporate or liberty,
at their general quarter sessions, to contract and agree, or autho-
rize any person to contract and agree with any person for the
maintaining in repair any county or hundred bridge and so much
of the road at the ends thereof as are liable to be repaired by the
county, hundred, city, 8^c. and the justices are empowered to
order such sums as may be contracted to be paid for repairing
such bridges, Sfc. to be paid (in case the county is liable to
repair) by the treasurer out of the county rate, or (in case the
hundred is liable to repair) by the bridge-master {a) or other
proper officer, for any term not exceeding seven years, nor less
than one year, although no presentment of the insufficiency,

all money
raised for the
repairs of
bridges in a

to the clerk of (Jecay, or want of repair shall have been made, and although no

per centage on notice shall have been given by the justices of their intention
as directed by the act of the 12 G. 2.: provided that before any
such contract shall be made, the justices shall cause notice to be
given in some paper circulated in the county, S^x. of their in-

partTcular dis- tention to contract.

trict in lieu of all his fees for indictments, presen tments, &c. for bridges within it. The King

V. Houlgrave, 1 Barn. & A. 312. j and see 3 Barn. & A. 215.

1 G.4. c. 116. By 1 G. 4. c. 1 16. § 2. such parts of all former acts relating to
bridges as enact that persons wilfully and maliciously blowing
up, pulling down, or destroying any bridge, or attempting to do
so, or unlawfully removing any works thereto belonging, shall
be guilty of felony without benefit of clergy, are repealed.

BURGLARY. 79^

By 7&8G. 4. c. 30. §13., if any person shall unlawfully t&sG. 4.
and maliciously pull down or in anywise destroy any public c. so. §15.
bridge, or do any injury with intent and so as thereby to render
such bridge, or any part thereof, dangerous or impassable, every
such offender shall be guilty of felony, and being convicted
thereof, shall be liable, at the discretion of the court, to be
transported beyond the seas for life, or for any term not less
than seven years, or to be imprisoned for any term not ex-
ceeding four years, and if a male, to be once, twice, or thrice
publicly or privately whipped, if the court shall so think fit, in
addition to such punishment. ||

BURGLARY.

"DURGLARY is a felony at the common law, in breaking h.P.C. so.

and entering the mansion-house of another, or a church, or s Inst. 63. S. P.
the walls or gates of a walled town, in the night, with an intent C. so a. Dalt.
to commit some felony, whether such felonious intention be ex- ^■,^^" Z^"""' ,
ccuted or not. 95. i Hawk.

P. C. c. 38. [4 Black. Com. 223. Burglatores, or burgatores, were so called, according to Sir
H. Spelman, quod dnm alii per compos latrocinantur entinus, hi burgos pertinacius ^ringunt, et
deprcBdantur. And, in the opinion of the same writer, the word burglaria was brought here
by the Normans, for he doth not find it among the Saxons. The crime, however, is noticed
in oiir earliest laws, under the names of hufbprec, and hamrocnei and was punishable with
death. Vide LL. Canuti, cap. 61. and Hen. 1. c. 13. — The description of the offence hath
varied at different times, and hath been much larger than it is at present : nor doth the cir-
cumstance of time, which is now of its very essence, seem to have been formerly much, if at all,
attended to ; its malignity, for many centuries, being supposed to consist merely in the
invasion on the right of habitation, of which the law of England hath always had so tender a
regard. It doth not appear, at least the editor's researches nave not enabled him to discover,
at wiiat particular period this circumstance was first deemed essential to the crime. However,
it must have been setttled before the reign of E. 6.; for, in the fourth year of that king, we
find it expressly laid down, that it shall not be adjudged burglary, " «m ou le infreinder del
* meason est per nocteni" Bro. tit. Corone, pi. 185.; and two years before, we meet with per
noctevi, introduced, as of course, in the mention of this offence. Id, pi. 180.]

In this definition it will be necessary to consider,

(A) What Breaking is sufficient to constitute this

Offence.

(B) What Entry.

(D) What shall be accounted Night-time for that

Purpose.

(E) In what Place this Offence may be committed.

(F) Of

796

BURGLARY.

(F) Of the Intention to commit some Felony.

(G) How this Offence is punished, and the Offender

excluded his Clergy.

H.P.C.80.

5 Inst. 64.
1 Hawk. P. C.
C.38. §4.

Croin.32.
Andr. 115.
cont. 1 Hawk.
P. C. c.38.
§ 4., leaves this

Kelynge, 42.
63. Crom. 32.
Dalt. c. 99.
H.P.C. 81.
] Hawk. P. C.
c. 38. § 5.

Kel)nige, 30.
67. H.P.C.
81., 82.
lHawk.P.C.
c.38. §4. Stra.
481.H.H.P.C.
562. Hut. 20

Rex V. Hall,
Russ. & Ry.
C. C. 355.

Rex V. Lewis,
2 Carr. & P.

Rex V. Smith,
/rf. 417.

Rex V. Brice,
Id. 450.

Rex V.

Haynes, Russ.
& Ry. 451.

(A) What Breaking is sufficient to constitute this

Offence.

/^NE who comes down by a chimney, who opens a window,
or breaks the glass thereof, unlocks a door, or draws the
latch of a door, is guilty of breaking the house, as much as if he
had actually forced open the door, or had broken a hole in the
wall, Sfc.

Also, if one assault a house with an intent to rob it and the
owner of the house, in order to drive him away, opens the door,
and he thereupon enters, he is guilty of breaking the house,
a qutsre. Yet see the next clause.

If persons coming to a house with an intent to rob it, are let
in under a pretence of business with the owner, and then rifle
the house; or if persons, having such a felonious intent, take
lodgings in a house, and then fall on the landlord and rob him ;
or if persons, having such intent, raise a hue and cry, and pre-
vail on the constable to search the house, and being let in by that
means, bind the constable and rob ; in these cases the offenders
have been adjudged guilty of burglary.

It is burglary for one who enters by an open door, or lies
in a house by the owner's consent, to unlatch a chamber-door
with a felonious intent. So if a servant draws the latch of the
chamber-door in which his master lies, with an intent to murder
him.

33.

11 Where a window opens upon hinges, and is fastened by a
wedge, so that pushing against it will open it, forcing it open by
pushing against it is a breaking.

If a cellar window have an aperture to admit light large
enough for a person to get through, and the prisoner enter the
house by going through it in the night, this is not burglary.

The prisoner broke the glass of the prosecutor's side door on
the Friday night with intent to enter at a future time, and
actually entered on the Sunday night; the judges held this
burglary, the breaking and entering being both by night, and the
breaking being with intent afterwards to enter. •

Getting into a chimney of a house is a sufficient breaking and
entering to constitute burglary, though the party does not enter
any of the rooms.

Pulling down the sash of a window is a breaking though it has
no fastening, and is only kept in its place by the pulley weight ;
it is equally a breaking though there is an outer shutter which is

not put to.

But

(A) Whai Breakiiig is sufficient to constitute this Offence. 797

But if a window be partly open, but not sufficiently to admit Rex v. Smith,
a person, the raising of it sufficiently to admit a person is not a Ry. & M. C.
breaking. II ^' ^"^s.

By the 12 Ann. stat. 1. c. 7. it is recited, " that there had isAnn. sui.
" been some doubt, whether the entering into a mansion-house c.7.2Stra.88i.
" without breaking the same, with an intent to commit some rl', fi j
" felony, and breaking the said house in the night-time to get Bacon was of
*' out, were burglary; and thereupon it is declared and enacted, opinion that it
" that if any person shall enter into the mansion or dwelling- was burglary;
" house of another by day or by night, without breaking the thoueht that it
" same, with an intent to commit felony, or being in such house vvas not. Bac.
" shall commit any felony, and shall in the night-time break the Eliz. 65. H. H.
*' said house to get out of the same, such person is and shall be P* ^- ^^^-l
*' adjudged and taken to be guilty of burglary, and ousted of
" the benefit of clergy, in the same manner as if such person had
*' broken and entered the said house in the night-time, with an
*' intent to commit felony there."

II By the statute 7 & 8 G. 4. c. 27., so much of the 18 Eliz. '7&8G.4.
c. 7., as relates to burglary, and also the 12 Ann. stat. 1. c. 7. *^'
are repealed, and by the 7 & 8 G. 4. c. 29. § 11. it is enacted,
that every person convicted of burglary shall suffer death as a
felon ; and it is thereby declared, that if any person shall enter
the dwelling-house of another with intent to commit felony, or
being in such dwelling-house shall commit any felony, and shall
in either case break out of the said dwellinff-house in the night-
time, such person shall be deemed guilty of burglary.

Where the prisoner broke out of a cellar by lifting up a heavy Rex v. Callan,
flap by which the cellar was closed on the outside next the street, R"ss. & Ry-
the flap not being bolted but having bolts, six of the judges were
of opinion that there was a sufficient breaking to constitute
burglary, and the remaining six were of a contrary opinion. ||

But if one enter into a house by a door which he finds open, s Inst. 64.
or through a hole which was made there before, and steal goods, ^•^'.^b^r'
Sfc.j or draw any thing out of a house through a door or window „ t^ ' *
which was open before, or enter into a house by the doors
open in the day-time, and lie there till night, and then rob and
go away, without breaking any part of the house, he is not guilty
of burglary ; and therefore such breaking, as is implied by law
in every unlawful entry on the possession of another, whether it
lie open or be enclosed, though it will maintain a common indict-
ment, or action of trespass quare clmisum JJ'egit, will not satisfy
the words Jelonice et hurglariter fregit.

Cupboards, presses, lockers, and other fixtures of the like See Fost. Cr.
kind, which merely supply the place of chests and other ordinary Law, 108, 109.
utensils of household, should be considered in no other light
than as mere moveables, partaking of the nature of these utensils
and adapted to the same use ; and therefore the breaking open a
chest in the house, or the door of a cupboard let into the wall of
a house, is not burglary.

(B) What

C.C. 157.

798

BURGLARY.

(B) What Entry.

A NY the least entry, either with the whole or but with part of
the body, or with an instrument or weapon (a), will satisfy
the word iniravit in an indictment of burglary ; as if one do but
put his foot over a threshold, or his hand, or a hook or pistol
within a window, or turn the key of a door which is locked on
the inside, or discharge a loaded gun into a house, Sfc.

Da!t. c. y9.
H.P.C. 81.

Andr. 1 1 5.
Crom.51, 32.
Hawk. P. C.
c. 38. Fost.
Cr. Law, 107,
108. [(a) But it

seems, that the instrument must actually be introduced for the purpose of committing the
felony ; and therefore, where thieves had bored a hole through the door with a centre-bit,
and part of the chips were found in the house, but they had neither gotten in themselves, nor
introduced a hand or instrument for the purpose of taking the property, the entry was ruled
to be incomplete. O.B. 1785. Hawk. P. C. (6th edit.) 162. n. 1.] ||Where the prisoner
broke a window in order to steal property, and his finger went within the house, it was held
a sufficient entry. Rex v. John Davis, Russ. & Ry. C. C. 499. So also introducing the hand
between the glass of an outer window and an inner shutter. Rex v. Bayley, Id. 341. So an
entry down a chimney is a sufficient entry into the house, for the chimney is part of it. Rex
V. Brice, Russ. & R. 450. But where the defendant threw up a window and introduced a
crowbar to force the shutters which were three inches from the window, but no part of the
hand was within the window, this was holden not to be an entry, although the defendant did
it with intent to steal. Rex v. Rust, Ry. & Moo. C. C. 183.||

Crom. 32.
H.P.C. 80,
81. Hawk.
P.C. C.38.

Also, in some cases, an entry in law is sufficient, though there
be no actual entry ; as where divers come to commit a burglary,
and some stand in adjacent places, and the others enter and rob,
they are guilty ; for the act of one is the act of all.

And upon this ground HawH?is argues, that a servant within

a house, who, in confederacy with a rogue lets him in to him, is

-„ , . . as much guilty of burglary as if he had been without the house.

Hale says it is n j o .

only robbery in the servant. H. P. C. 81. H. H. P. C. 553. says it is burglary in both. See

sStra. 881.* loSt.Tr.434.

* Cornwal's case similar to the text; and at a meeting of all the Judges at Serjeant's Inn,

they were all of opinion it was burglary in both.

Hawk. P.C.
C. 38. But
qucBre ; ("or

T^HERE must be both a breaking and an entry; for both the
words fregit and intravit are necessary in the indictment ;
and therefore if, on a bare assault upon a house, the owner fling
out his money, it is no burglary,
says there are some loose opinions to the contrary j for which vide the authorities there cited.

H.P.C. 80.
3 Inst. 64.
Hawk. P.C.
c. 38. S.P. ac-
cord. But he

(D) What shall be accounted Night-time for this

Purpose.

nPHE word noctanter being precisely necessary in every indict-
ment for this offence, cannot therefore be satisfied in a legal
sense, if it appear upon the evidence that there was so much
daylight at the time (a), that a man's countenance might be
^Co.'e.^Hawk. discerned thereby.
P. C. c.38. But in some of these books, there are opinions that burglary may be committed
at any time after sun-set, and before sun-rising, [(a) But this does not extent to moonlight;
for then many midnight burglaries would go unpunished ; and besides, the malignity of the

offence

Dalt. c. 99.
S. P. C. 30.
Crom. 33.
H.P.C. 79
3 Inst. 63

(E) In what Place this Offence may be committed. 799

offence doth not so properly arise from its being done in the dark, as at the dead of ludM,
when all the creation, except beasts of prey, are at rest, when sleep has dbiarined the owner
and rendered his castle defenceless. 4 Black. Com. 224.] *

(E) In what Place this Offence may be committed.

ACCORDING to the constant use of late precedents and H. P.C. 82.

opinions, it seems necessary to have the word mansionalis Hawk. P.C. •
in the indictment; and therefore that the offence can be only *^"'® ■*.^**'
committed in a dwelling-house. cvi^lnit'AjBdr*

302. and S. P. C. mention precedents of indictments of burglary in </onio without adding mmm-
sionali. Also it is agreed, that burglary may be committed in breaking churches, or the
walls or gates of a walled town, in which the word mansionalu cannot be made use of; but
these are said to be distinct burglaries ; though Lord Coke says, that as to a church, it may
pro[)erly enougii be alleged, being the mansion-house of God j qu^re. 3 Inst. 64. Bro. Coroo.
95. 22 Ass. 39. 95. Poph. 42, 27 Ass. 38. Dalt. c. 99. 4 Black. Com. 224. BSee 7 & S
G. 4. c. 29. § 10.|| Burglary in an apartment in the African House, it must be laid to be the
mansion-home of the Company. Fost. Cr. Law, 38, 39.

A house which a man dwells in but for part of the year, Crom.33b.
or which he hath hired to live in, and brought part of his goods || ^ ^•*^*
into, but hath not yet lodged in {b\ or which his wife hath hired, Mo. 66o. pi.
though without his privity, and lives in without him, will satisfy 903. 4 Co.
the words domus mansionalis in an indictment of burglary, though ^o.a. Cro.Car.
no person were in it at the time of the offence. *''" i^rj^.

52. Poph. 42. 52. 3 Inst. 64., so agreed by all these books. Hawk. P. C. c. 38. Ko»t. Cr.
Law, 77. [{b) But it hath been determined, that a house under repair, but not yet inhabited,
though the owner have deposited part of his effects in it with a view to reside in it, is not bb
dwelling-house, and therefore not the object of burglary. Lvon's case, O. B. Jim. \Tt%.
Leach's Cases, 169. So of an unfinished house, though one of the workmen constantly slraC
in it for the purpose of protecting it. Fuller's case, O. B. Dec. 1782. Ibid, n.) |)So al»o of •
house which the owner uses for meals and for business, but in which be never sleeps. Rex ».
Martin, Russ. & Ry. C. C. 108. So also of a house which is merely used as a warehouMMid
workshop, though two women, employed in the prosecutor's business (not domestic «erTMl^
slept in It. Rex v. Flanagan, Id. 187. But where the prosecutor had left his bouse willlM«t
intention of returning to it, and had let some of the rooms to lotlgcrs, but co«ti— ■■
his business theie, and his apprentice and foreman and foreman^s wife, who was also kto
servant employed in keeping the apartments clean, dwelt there, receiving weekly w«b,H ••»
holden to be the dwelling-house of the prosecutor. Rex v. Giblwns, Russ. A Rr. C. C. 44J.
And where a servant boy of the prosecutor always slept over a brewhouse of the pfo«ccuW.
separated from his dwelling-house by a public passage, but occupied therewith, «».y** y*^^"g
the brewhouse was the dwelling-house of the prosecutor, though not the dwelftag-ttoaat »
which he actually dwelt. Rex v. Westwood, Russ. & R. C. C 4»5. ; and Me K«s ▼. WOCB,
Id. 185.||

Also all out-buildings, as barns, stables, dairy houses, S(€. ^^^^
adjoining to a house, are looked upon as a part thcregf, and ^^ ^
consequently burglary may be committed in them; but it lljcy be Coroa. Ita
removed at any distance from the house, it seems that it has J>of»-W Jj
not been usual of late to proceed against offences therein as JJ^^ij j, (ji
burglaries. cM. ICtar*

bnd'tcaK. Uach'k Cat. IM.)

II An important alteration of the law has been made bv the
13th section of 7 & 8 G. 4. c. 29., wiiich enacts, that no budding 7 AiO.
although within the same curtilage with the dwelling-house, anU ca^T
occupied therewith, shall be deemed to be part of such dwelling-
house, for the purpose of burglary, or for any of Uie P"'?***
aforesaid, unless there shall be n communication ^^''^^j^*?*

IS.

800 . BURGLARY.

building and dwelling-house, either immediate or by means of a
covered and enclosed passage leading from the one to the othet.
Rex V. Bur- Where the prosecutor's house consisted of two living-rooms,

G ^ss 1830^ another room used as a cellar, and a wash-house, on the ground
decided by ' floor, and of three bed-rooms up stairs, one of them over the
the twelve wash-house, and the bed-room over the living-rooms commu-
Judges. nicated with that over the wash-house, but there was no internal

communication between the wash-house and any of the rooms of
the house, but the whole was under one roof, and the defendant
broke into the wash-house, and was breaking through the par-
tition wall between the wash-house and the house place ; it was
holden that the defendant was properly convicted of burglary in
breaking the house. ||
But it does A chamber in one of the inns of court wherein a person

not seem usually lodges, or a lodging in a part of a house actually divided

agreed that an fj-Q^^ ^j^g pggj- Qf jj^g house, and having a door of its own to the
hired by a street, are agreed to be called properly mansion-houses,
lodger for a certain time, and not divided from the rest of the house, by having a different
door, &c. can be called his mansion house. Kelynge, 83., holds, that it cannot ; but Hawk.
P. C. C.38. § 13., seems conf. [If the owner of the house inhabit any part of it, and there be
no separate outer door to such part, the house shall be said to be his dwelling-house ; but if
he do not sleep under the same roof, then the different apartments shall be said to be the re^
spective dwelling-houses of the several persons renting them. Rex v. Rogers, Leach's Cas. 84.
Cowp. 1. Leach, 205. 353. Lofts over coach-houses and stables, converted into lodging-
rooms, and having an outer door common to the several inmates, may be said to be the
dwelling-houses of their inhabitants, though not rated to the parish books as dwelling-houses,
but merely as appurtenances to the coach-house and stables. Leach, 205.] Uln all these cases,
if there is any doubt whether it is the dwelling-house of A., B., or C., different counts should
be inserted alleging it in different ways.||

Kelynge, 27. If several persons dwell in one house, as servants, guests, or

Hawk. P. C. tenants at will, and a burglary be committed in any of their
St^ k ''^' apartments, it seems clear that the indictment ought to lay it in
2 Taunt. 359. • ^^^^ mansion-house of the proprietor, (a)

and see 16 East, 33.|| [(a) This was determined in the case of Somerset-house, belonging to
the Queen-mot/ier. If a burglary be committed in the apartments of a palace, it must be
stated to be in the mansion-house of the king. 1 Hal. 522. But qucere, in whose house steal-
ing in the Invalid-Office at Chelsea should be laid to be ? ||And see Rex v. Wilson, Russ. &
Ry. 115. If burglary be committed in apartments in the house of a corporation, which are
appropriated as lodgings for the servants, it must be laid to have been committed in the dwell-
ing-house of the corporation. Rex v. Picket, 2 East P. C. 501. Rex v. Hawkins, Foster, 38.
But where a company in the country rented a house in London for their agent, in the upper
part of which he resided with his family, and in the lower part transacted his business, it was
holden, that a burglary might be laid to have been committed in the house of the agent. Rex
v. Margetts, 2 Leach. 930. So if the owner of a cottage lets one of his workmen live there
free of rent and taxes, and he lives there principally, if not wholly, for his own benefit, it may
be described as his dwelling-house. Rex v. Jobling, Russ. & Ry. 525. ; and if the servant live
in it at a yearly rent, it cannot be described as the master's house, though on the premises
where the master's business is carried on. Rex v. Jarvis, Ry. & Moo. C. C. 7. Where a toll-
gate house occupied by a collector employed by the lessee of the tolls to collect the tolls at
weekly wages, with the privilege of living in the toll-gate house erected by the trustees of the
road for that purpose, was broken and entered in the night time, it was holden that the house
was well described as the dwelling-house of the toll-gate keeper, because he had the exclusive
possession ahd it was unconnected with the premises of the lessee, who did not appear to have
any interest in it. Rex v. Camfield, Ry. & Moo. C. C. 42. ; and see Rex v. Witt, Ry. & Moo.
C. C. 248. II If burglary be committed in one of two adjoining houses belonging to two part-
ners, it ought to be laid to be in the separate mansion of the partner in whose house it wa«
committed, if there be no internal communication between the two houses, although the rent
and taxes of the house are paid out of the partnership fund. Martha Jones's case, Leach, 434^

Burglary

(G) How this Offence is punished, 801

Burglary cannot be committed in a shop or workhouse which H. P. C. 83.
is leased to one for his use in the day-time only (a), nor in a ^ ^^!; ^^•
ground enclosed, nor in a booth or tent, {b) g'^p q^^q ^'

Dalt. c. 99. Crom.31. 1 Hawk. P. C. c. 38. [(a) It hath been determined, that burglary
may be committed in a shop adjoining to a house, if under the same roof and within the cur-
tilage, although there be no internal communication between the shop and the house, and no
person sleep in the house, and the shop together with some apartments in the house be
rented out by the owner. Gibson, Mutton, and Wigg's case, Leach, 287.;] ||and see Rex v.
Sefton, Russ". & Ry. 202. Sed vide Rex v. Egginton, 2 Bos. & Pull. 508. 7 & 8 G. 4. c. 29.
§ I3.|| (b) Clergy is taken away from those who rob any person in their dwelling-house or
booth. 5&6Ed. 6. c. 9. 18 Eliz. c. 7.

[By 13 G. 3. c. 38. burglary in any house, shop, 4-c. belong- 13 G. 5. c.38.
ing to the plate-glass company, with intent to steal or destroy
the stock or utensils, is declared to be single felony, and punished
with transportation for seven years.]

(F) Of the Intention to commit some Felony.

HE indictment must allege, and the verdict find, an inten- Dyer, 99.

tion to commit some felony, though it be not necessary that pi. .5s. Dalis.

a felony be actually committed; for if it appear that there was 22. 3 Inst. 65.

only an intention to commit a trespass, there can be no burglary ; ^^^"^^gg 34

but it seems that an intention to commit a rape, or such other Crom.32.

crime, which was a trespass only at law, and is made felony by cont. Dalt.

statute, will make a man guilty of burglary, as much as if such ^- ^^- ^ ^^^^^'

offence were a felony at common law ; because, wherever a sta- c'jg|
tute makes any offence felony, it incidentally gives it all the pro-
perties of a felony at common law.

II The intent laid must be proved in evidence. Where the Rex v.

intent laid was to kill a horse, and the intent proved was merely Dobbs, 2 East

to lame him, to prevent him running a race, the variance was P'C. 513.
fatal.

Where the intent laid was to steal, and the defendant was Rex v. Brice,.

discovered in the chimney of a shop in the night time, and the Kuss. & Ry

jury found him guilty of burglary with intent to steal, the evi- '*^°*
dence was held to warrant the conviction. If the intent is doubt-
ful, it may be laid in different ways.||

(G) How this Offence is punished.

'T'HIS offence has been punished, like all other felonies, by
hanging, since the following statutes, which oust the of-
fenders of the benefit of their clergy. For,

By 1 Ed. 6. c. 12. §10. the principal is excluded in all cases 1 Ed. 6. c. 12.
except that of challenging more than twenty, if any body be in § 'O- ^'^'^
the house at the time of breaking, and thereby put in fear, ^r. ^ sj^&'gg

&c. and the authorities there cited.

Also the principal in every burglary, whether any person were
in the house at the time or not, is excluded from his clergy by
18 Eliz. c. 7., upon a conviction by verdict, outlawry, or con-
fession.

Vol. L S F Also

BY-LAWS.

3 & 4 W.& M. Also by 3 & 4 W. & M. c. 9. every person who shall counsel.
^'^ il^y^he hue, or command any person to commit any burglary, being
c 27^the three thereof convicted or attainted, or being indicted, and standing
above statutes mute, or challenging peremptorily above twenty, shall not have
are repealed; his clergy ; and by this statute principals in burglary standing
and by the mute, or challenging peremptorily more than twenty, are ousted

4.7°- 'his pro. of their clergy.

-fvision of 3 & 4 Will, is extended to all offences then or thereafter to be excluded from clergy;

'and by 7 & 8 G. 4. c. 28. § 6. benefit of clergy is abolished ; and by 7 & 8 G. 4. c. 29. § 11. it
is enacted, that every person convicted of burglary shall suffer death as a ftilon.||

.10 & nW. 3. [By 10 & 11 W. 3. c.23..§2. the prosecutor of a burglar to
c. 23. § 2. conviction is entitled to a certificate, which may be once assigned,
and which discharges him or his assignee from all parish and wartl
offices. The .5 Ann. c. 31. hath added a reward of 40/., and an
accomplice being out of prison, discovering two or more felons,
is entitled to the like reward and a pardon. And by the last act,
the receivers of the goods stolen, and receivers of the burglars,
are declared accessories, and excluded from their clergy. And \i'
the principals cannot be taken, they may be tried as for a misde-
meanor. By 10 G. 3. c. 48. (a)^ the receivers of stolen jewels,
gold, or silver plate, watches, where the stealing shall be accom-
panied with a burglary, or robbing on the highway, shall be
triable as well before conviction of the principal, whether he
shall be in or out of custody^, as after, and be transported for
fourteen years. By 23 G. 3. c. 88., every person apprehended
having upon him any implement of house-breaking, with intent
feloniously to break and enter into any dwelling-house, ware-
house, coach-house, stable, or out-house, shall be deemed ti
rogue, Sfc. within 1 7 G. 2. c. 5.]
convicted as accessory after the fact, or for a substantive felony ; and in the latter case, whether
the principal shall or shall not have been previously convicted, or shall or shall not be amenable
to justice, and the receiver being convicted shall be transportable for not more than fourteen
years nor less than seven, or may be imprisoned for not more than three years.U

l!(a) By the
7 & 8 G.4,

. c. 27. this sta-
tute is re-
pealed; and
by 7 & 8 G. 4.
c. 29. § 54. if

.any person
shall receive

: any property
whatever, the
stealing where-
of is felony,
knowing the
^ame to have
been felo-
niously stolen,
the receiver
shall be guilty
of felony, and
may be in-
dicted and

EY-LAWS.

-Moor, 585.

" 5 Co. 62.
[The word 6^-
law is derived
by some from

A BY-LAW is a private law made by those who are duly
"^ authorized (a) thereunto by charter, prescription (5), or cus-
tom (c), for the conservation of order and good government
within some particular place or jurisdiction. (</)
bupus, buns, bunh S. byr, I., a town or borough, and la a, S. law. By others from by, S. bij.
denoting private, and lasa.] (a) A power of making by-laws is included in the very act o;
incorporating, and incident to every corporation aggregate, without express words in tht
charter : all by-laws must ever be subject and squared to the rule of the general law of tbi
realm, as subordinate to it. Hob. 211. [Where the power of making bjt-laws is by charter
given to a select body, they do not represent the whole community, and therefore canne

assunu

BY-LAWS. sm

assume to themselves what belongs to the body at large. But. where the powerls in the body
ap large, they may delegate their right to a select body, who thus become the representative of
the whole community. 3 Burr. 1837. But where a power is given by charter to a select number to
make by-laws in the stead, for, and in the name of the whole^ and a by-law is returned as made by
the body at large, such by-law may be good ; for it may have been made by the select body actinia
in the name of the whole, and if found to be made in due manner, it shall be so intended, l Burr.
130, 131,] ||SeeR. v.\Ve8twood,4Barn.&C. 781.|| (/^) By the 19 H. 7. c.7. it is enacted, that
no ordinance shall be made in diminution, or to the disinheritance of the prerogative of the king,
nor against the common profit of the people, unless they are examined and approved by the
chancellor, treasurer of England, chief justices of either bench, or three of them, or both jus-
tibes of assise in their circuit, where the ordinance is, &c., nor shall restrain any to sue to the
king against such ordinances. [This statute extends only to guilds, frateruities, &c., not to
cities, boroughs, &c. Per Att. Quo W. 44. And if lawful and reasonable the by-law will be
good, though not confirmed or allowed according to this statute.] Roll. Abr. 363. 5 Co. 63.
Comb. 222. (c) Where a by-law, founded on a particular custom before allowed, and become
part of the common law, shall be operative by the custom, though otherwise it would be void.
Vide head of Customs, and Raym. 294. Carter, 68. 114. Bridgm. 140. Brown. 177, 178.
Skin. 575. (rf) The inhabitants of a town, without any custom, may make by- laws for the
repair of their church, highways, or such other thing as is for the public good; and in such
case the greater part without any custom shall bind all. 5 Co. 63. Moo. 579. Brownl. 288.
Hob. 212. Mod. 194. Of by-laws for the better regulation of commons, vide head Common,
and Roll. Abr. 565. Leon. 190. Andr. 234. 3 Leon. 38. 264. Dais. 95. Palm. 396.

[The validity of a by-law cannot be questioned in a summary 2 Burr. 777.
way upon motion, on the return to a habeas corpus aim causa,
from any other corporation but that of London ,- but the plaintiff
must begin de nono, and declare over again in the superior court.
The reason of this distinction between the city of London (a) (a) Per Den-
and all other cities and corporations, may perhaps arise from '"*''" ^- ^^'
particular methods of recovery being established and allowed by
the customs of London, which cannot be pursued in the superior
courts ; so that the shewing that to be the cause, is a good cause
of detainer ; for upon these writs of habeas corpus, the person to
whom they are directed must shew a good cause of detainer :
and if the superior courts cannot proceed, as the customs of
London authorize their courts to proceed, it is a good cause of
detainer ; therefore the superior court will there enter into the
validity of the by-law, to see whether that be the case or not;
and if the by-law appears to be bad, the party shall be dis-
charged, as being detained without cause.]

As every by-law must be reasonable in itself, and agreeable to 8 Co. 126.
the general laws of the realm, and be framed so as to advance ^^ ^* ^^'^ *°
the benefit of that place where it is made to operate, I shall gerted by HoU
therefore consider, — C. J. that

every by-law,

(A) Such By-Laws as relate to the appointing and ben^arofth^e

electing of Members of a Corporation. corporation i«

_ . . . advanced, is

(B) buch as are made in Restraint of Trade. for that reason

(D) Such as affect Strangers. true toilcL

(E) Such as in the Frame and Make of them are void, b^aws.^""

by ordaining a Method of enforcing Obedience Carth. 432.
to them contrary to Law. ?"i ^'je true

•^ test of all

by-laws, according to Mr. Just. IVilm- 1, is the intention of the crown in granting the charter,

3 F 2 and

804

BY-LAWS.

and the apparent good of the corporation. 5 Burr. 1 838. Perhaps the criterions are not sufiR.
ciently marked out and explicit by either of these authorities. — It is not necessary to set out
in the preamble all the reasons of the by-law. 3 Burr. 1324.] IJA by-law imposing a fine for
not attending courts is a good by-law. 7 Barn. & C. 838. But a by-law that every freeman
of a company should pay eight shillings, and every journeyman four shillings yearly, and every
person refusing should forfeit twice the sum, was bad, inasmuch as it did not appear that any
rightful expenditure of the company required such a contribution. Ibid. Sed vide Innholder's
case, 1 Wils. 28 1. Ford's MSS. vol. 5.\\

Vide head of
Corporations.
4Co.78.Jenk
R.273.S. C.
[1 Stra. 314.
S. P. 5 Burr.
1833. S. P.
But a by-law
cannot strike
off an integral

(A) Such By-Laws as relate to the appointing and
electing Members of a Corporation.

TF there be a corporation made and incorporated by the name
of mayor and commonalty, and by the charter the mayor be
appointed to be chosen by the 'commonalty, and in the said
charter there be a power given to them to make by-laws for the
better order and government of the said corporation (a), they
may make a by-law, that a select number of the commonalty
shall be chosen, by whom the mayor shall be chosen, for avoid-
ance of popular confusion,
part of theelectors, neither can it narrow the description of persons eligible, or superadd a qua-
lification not required by the charter. Rex v. Spencer, 3 Burr. 1827. See, too, 4 Burr. 2204.]
(a) But where members of parliament are to be chosen by all the commonalty, the election
cannot by a by-law be given to a select number ; for free elections for members of parliament
are pro bono publico ; and this is not to be compared to the case of elections of mayors, &c.
4 Inst. 48, 49.

II And where the charter gave the right of electing aldermen
to the mayor and burgesses at large from themselves, a by-law
was held reasonable and valid, which restrained the election to
the mayor and certain of the burgesses of the town, viz. the
recorder, aldermen, coroners, common councilmen, and such of
the burgesses of the town as had served the office of chamberlain
or sheriff of the town, and called the livery or clothing bu?'-
gesses for the time being, or so many of them as should be duly
assembled together for that purpose, whereof the mayor was to
be one or the major part of them ; for the body at large had a
right thus to delegate the elective function to a select part of
themselves, upon the principle of avoiding popular confusion.

And so also where, by the charter, the power of electing bur-
gesses was vested in the mayor and burgesses, and the corpora-
tion at large made a by-law, vesting the right in the mayor and
common council (the common council consisting of the bailiflf^
and aldermen chosen out of the burgesses) ; it was held, that
the by-law was good, the burgesses at large being represented
by the common council, who were elected from them, and no
integral part of the corporation, being thus excluded.

But a corporation cannot make a by-law contrary to their
constitution ; therefore, where a charter directed the election of
senior bailiff to be made by a majority of a select body, a by-
law, giving a casting voice to the presiding officer, in case of an
equality of votes, was held to be bad.

The

The King v.

Ashwell,

12 East, 22. J

and see

13EastR.367.

2 East, 70.

Rex V. West-
wood, 4 Barn
&C. 781. by
Holroyd and
Littledale Js.
Hayley J. diss
Abbott C. J.
dubitante.

Rex V. Gine-
ver, 6 Term R.

732.

(A) Such as relate to the Members of a Corporation.

805

The power to make by-laws being incidental to the whole Rex v. West-
body of every corporation, where the charter expressly gave to wood, uii
a select body the power to make by-laws for the rule and *"/"'^'
government, Src. of the burgesses, artificers, ^c, this was held
not to exclude the body at large from making by-laws on
matters not included ; as, for instance, the by-law above men-
tioned, restraining the power of election. |j

' If a by-law is made by the company of vintners in Londoti, Raym. 446.
that every freeman of the said company who shall be chosen and Tavernier's
admitted to be a liveryman, shall pay 311. 135. 4^., Sj-c, this is a 22T A^'v-
good by-law ; for this being a degree of pre-eminence to which law by the
men of substance only are raised ; and there being a necessity company of
for money to support the honour and reputation of the company, barber-sur-
were the sum more or less, it could not make the by-law void, every 'one
while it binds only the members of the corporation ; for when a chosen stew-
man doth agree to be of a company, he doth thereby submit ard shall forfeit

himself to the laws thereof. 2?-P" •".^/"^^

of his taking

upon hiiti the office, held good, 2 Lev. 252. Vide Lutw. 402. ||So also a by-law, that if any

person chosen to be a warden of a company should refuse to accept the office, he should forfeit

to the company 6l- ISs. 4d., was held good, since the words any person would apply only to

persons eligible under the charter. Master, &c. of Tobacco Pipe-makers' Company v. Wood-

roffe, 7 Barn. & C. 838.1|

A by-law made in Londofi, that no freeman chosen sheriff, Salk. 142. pl.i.
Src, shall be excused, unless he voluntarily swear he is not worth Ld- Raym. 49 6
10,000/., and bring six other citizens to vouch in like manner, 070 ejffi S r
on their oaths, that they believe it to be true; and if he openly Carth. 480.
refuse to take the office, then to forfeit the sum of 500/. ; viz. S. C. at large,
400/. to the city, and 100/. to the next man that shall hold the »nd several
office ; held a good by-law. {a) tSloTt.

5 Mod. 438. 440. S. C. (a) That every common-councilman who resigns his office, shall
forfeit 10/., a good by-law. Lutw. 402. 40.5. (b) Of a company to elect upon their livery
such and so many of their members as should seem most meet and convenient to them
on pain to forfeit 25/. on refusal to accept or to pay the admisbion-fee, is a good by-law.
1 Burr. 239.

[Where a corporation having right to make by-laws to govern Mayor, &c. of
the inhabitants, and to make secondary burgesses out of the in- Wokingham v.
habitants, and capital burgesses out of the secondary burgesses, Johnson, Ca.
made a by-law, that every inhabitant chosen a burgess, and 284.
refusing to serve, should forfeit, <§c ; this was holden to be a
good by-law; though as framed, it could affect only an in-
habitant refusing to be a secondary burgess, not a secondary
burgess refusing to be a capital burgess.

Where the title to the freedom of a borough as given by the Rg^ v. Breton
constitution of the crown was by birth, servitude, or election, a 4 Burr. 2260.
by-law that any person (not so entitled) should be admitted to
the freedom of the borough, upon payment of the sum of ten
pounds, was holden bad.

Where the mode of electing officers is not particularly pointed Newling v.
out by charter or prescription, the corporation may from time to 3™"p*j^'j^ jgg
time make by-laws to regulate their elections.]

II Where a by-law of a corporation directed that, upon the Rex v. Bailiffs
happening of any vacancy in the number of twenty-four common ^^'^,'^1 "'

3 F 3 council,

806

BY-LAWS.

council, such vacancies should be filled by the freemen inhabiting
the town, and that a court should be holden once in every year^
at which it should be lawful for the bailiffs to admit to the free-
dom of the town such persons as had been resident therein for
one whole year ; it was held, that this by-law did not give to
jcvery person, who had been so resident for that period, an
absolute right to be admitted to the freedom of the borough,
and the court refused a mandamus to the bailiffs to admit such a
Rex V. Bailiffs person ; and they also refused such a mandamus to a resident,
^'^y^'J ^^"* though he had been fined for carrying on trade within the town,
without being admitted to the freedom ; the court considering
the words " it shall and may be lawful to admit," S^c.^ as not
obligatory on the corporation. [|

(B) Such as are made in Restraint of Trade.

Roll. Abr. 364. A NEW corporation not having any prescription to appro-
Hob. 211.212. priate to themselves (a), and exclude others, cannot make a
Norris and by-law to exclude all persons from using an art or trade in
otapes, nut- their town to which they were not apprentices in the same town,
Moor' 86"9. though they have served as apprentices to it in another place.
(«) But a by-law founded upon prescription or custom, may restrain a man from the exercise
of his lawful trade in a particular place. Lutw. 564. Carter, 86. 114. But a by-law shall
not be carried farther than the prescription warrants. Vide Raym.294. 2 Brownl. 178. 182.
Bridg. 140. A by-law founded on the custom oi London that no person not being free of the
city oi London shall keep any shop, or use any trade within the city, resolved good in Wag^
goner's case. 8 Co. 129. ; and so the practice has been to this day. So where the corpo-
ration of weavers claimed by custom that none shall intermeddle with their art within London
and Southwark but those of their guild or fraternity, held good. Cro. Eliz. 803.

Hob. 211. Therefore, if a corporation make a bye-law, that no one shall

Norris v. use the art of weaving within the corporation who has not served

w'^Ter^of ^ seven years as an apprentice there, or who has not exercised that
Newbery's trade there for five years before the making of the by-law (Z»),
case. Hut. 6. nor unless he be allowed and approved of by the wardens of the
S- ^- ^°'"> company, this is a void by-law ; for any person may lawfully
R i 49 follow what trade he pleases, and vi^here he pleases, unless pro-
S.C. (i) If the hibited by the general law of the land.

king creates a corporation, and by the same charter grants to the members that none shall use
a trade within the said corporation but such as shall be approved by them, or any two of
them, this grant is void, being against the liberty of the subject, and tending to a monopoly,
and what the king cannot immediately do cannot be done by any derivative authority from
him. Godb. 252. Lutw. 564.

1 1 Co. 53, 54. So where the Corporation of Taylors in Ipswich made a by-
1 ne 1 aiiors ot ]^^^ ^j^g^^ none should exercise the trade of a tailor in Ipswich (c),
adiudged^^^ 5'"^ ^^^ yj^^^vV allocatus per legale ivanantum vel authoritatem
Roll. R. 4, 5. datam by the said corporation, or three of the masters and
S.C. adjudged, wardens; nor should set up any shop for this art, nor exercise
s r ^ fT ^^ ^^' ^^^^ ^^^y presented themselves to the master, <^c., or three.of
Roll Abr feV ^^^^^ or proved that they had served in this trade as apprentices
365. S. C. for seven years.

adjudged. [But a by-law that every candidate for the freedom of a city shall be called at three
several meetings of the mayor, &c. and approved of by the majority, hath been holden good,
as providing a method for previously examining into the right of those who claim to be made
free. Green v. Mayor of Durham, 1 Burr, 131.] (c) That if a servant makes clothes for his
. ' master,

(B) Suck as are made in Restraint of Trade. 807

master, mistress, or their children, this is not exercising the trade of &c • but for thU «i*.
R0II.R4. llCo.54. Hob.2Il. Godb.25.-. Bridg.ili. 8 Co. . 29! . and c^^ sL 5 E^
C.4., and 28 H. 8. c. 5., that no apprentice or journeyman shall by oath or bond be compelled
not to keep any shop, &c. without licence of the master.

So where the town of Bedford made a by-law, that none, ex- Lutw. sea.
cept freemen, should exercise any art, trade, or mystery, within Mayor of
the corporation, this, not being founded on any custom they had ^forJ ▼•
of excluding foreigners, was holden void. See 't^i"?^^*

R. 269. '

If the Merchant Tailors o{ London, by virtue of their charter, j^^n p^^
make a by-law, that no merchant shall put his cloth to be Moor, 576
dressed but at a cloth-worker's of their company, this is a void 577, &c. 591.
by-law ; for it is against reason and the general liberty of the P'.'f?* ^^'
subject, to be restrained from putting his work to whom he between Dave-
pleases, nam and

Hardis. 2 Inst. 47. S. C 11 Co. 83. S. C. cited. Carth. 11 6. S. C. cited.

So a by-law in London, that none shall bring any sand, nor Godb. 106,
sell nor use any within the city or suburbs, but only that which '°^* adjudged,
is taken out of the rivers Thames, &c. is void, because it is against g q cited',
reason that a freeman should be restrained from merchandizing
and selling ; and this may concern the inheritance of some who
may have sands in their land.

If the city of London make a by-law, that no person shall 5 ^^j 1Q4

follow the profession of a dancing-master within the city, who is The Chaml)er-

not free of the Company of Musicians, this is a void by-law, lain of London

for if he free of any other company it is sufficient ; and the v. Groscourt,

obliging a man to be free of a particular company, when he Comb. 375.

has no remedy to compel that company to admit him, is creating S. C.(a)Under

a kind of monopoly in such company, and putting a certain » general

number of men under the final jurisdiction and power of P**^^"" *° "^^^
, J r by-laws with-

Otners. out any parti-

cular custom, a by-law cannot be made to restrain trade; therefore a by-law, that no freeman
of the city of Lotidwi shall exercise the trade of a butcher without being free of the butchers'
company, adjudged void. Harrison v. Goodman, 1 Burr. 12. Hesketh v. Braddock, s Burr.
1847. ||And a by-law that no person not being free of the Fewterers' Company, shall exercise
the trade of a pewterer within the city of London, is void, without proof of a special custom to
support it. Chamberlain of London v. Compton, 7 Dow. Si Ry. 597.; and see Clark v Le
Cren, 9 Barn. & C. 52. The custom must correspond with the by-law. See Clark v. Denton,
1 Barn. & Adol. 92.|| But vide Rex v. Harrison, T. 2 G. 3. 3 Burr. 1324., and I H. Black. R.
372., where a by-law that butchers not free should take up their freedom in the Butchers*
Company, and no butcher be admitted to the freedom of the city in any other company ; and
all butchers not free of the city, and entitled to their freedom of another company, should be
njade free of the Butchers' Company, on paying the usual fees and fine, was adjudi;ed gooiL
[And a by-law that no stranger shall use a particular trade within a city, is good it founded
upon a custom. WooUey v. Idle, 4 Burr. 1951. Bodwic v. Fennel, 1 Wils. 233. Secut, i(
there be no such precedent custom. 1 P. Wms. 184. But general customs in aid and support
of by-laws may include new things and objects which have not existed beyond the time of
memory, if they are within the reason of such customs. 1 Ld. Raym.499.] (a) A by-law made
by the merchant-adventurers that no man should buy or sell at four fairs within such a prince's
dominions without first compounding with them and paying a fine, was made void by tnc stat.
12 H. 7. c. 6., because it was an inlringement of the liberties of all others not being free of that
company. Roll. Abr. 363.

But if an ordinance be made in London by the common- 5 Co. 62.
council, (who have power by custom, which is among other Chamberlain
customs confirmed by act of parliament by general words,) that of London's

808

case. Roll.
Abr. 365. S C.
3 Leon. 264.
S.C. ill-re-
ported.

BY-LAWS.

Palm. 505.
per cur.

Lev. 229. ad-
judged.

Rex V. Sur-
geons' Com-
pany, 2 Burr.
892.

Rex V. Com-
pany of
Coopers of
Newcastle,
7 Term R. 543.
The King v.
Tappenden,
5 East R. 186.

Rex V. Mar-
shal, i Term

R. 2.

Harrison v.

Williams,

if any freeman, citizen, or stranger within the city, shall put any
broad-cloth to sale within the city of London, before it be
brought to Blac/cwell-hall to be viewed and searched, so that it
may appear to be saleable ; and that hallage be paid for it,
sciliceti one penny for every cloth, that he shall forfeit for every
cloth 65. Sd. ; this is a good ordinance, as well to bind strangers
as freemen ; because it is made to prevent fraud and falsity in
cloth, and for the better execution of the statutes without deceit ;
and the one penny for hallage is but a reasonable recompense or
charge, for the benefit which the subject hath by it.

If in London there is an act of common-council made, that the
bricklayers shall not plaister with lime and hair, but with lime
and sand only, and that plaistering with lime and hair shall
belong to the plaisterers, under the penalty of, Sfc. (admitting
this before to have been part of the trade of a bricklayer) the
by-law is void ; for though they have regimen jpersonmiim in
their manufactures, yet this power extends only to their de-
meanour in their trade, and not to annex that to one trade which
before belonged to another.

But if a by-law is made by the Corporation of Throwsters
in London, that none shall have above such a number of spindles
in one week, this is a good by-law, for it is not in restraint of
trade, but to make a more equal distribution of it.

[A by-law of the Surgeons' Company in London, " That no
" member should take an apprentice who does not understand
" the iMin tongue, his ability wherein should be tried by the
" governors, or one of them, before his being bound," adjudged
good.]

II But a by-law of a company in a corporation restraining the
number of apprentices to be taken by any of its members, was
held void as in restraint of trade.

"Where the Company of Free Fishermen and dredgermen of
the manor and hundred of Faversham in the county of Kent,
claimed in a return to a mandamus a right by immemorial custom
to make by-laws for reasonably restraining and regulating the
number of persons to be taken apprentices by any freeman, and
in virtue of such custom, made a by-law that no tenant of the
manor should take any apprentice other than his own son or the
son of his wife by any former husband, or other than the son of
any other tenant, or of his wife by any former husband ; the
court did not decide on the validity of such a custom, but held
the by-law bad, as being inconsistent with it, since it did not
merely abridge the number of apprentices, but altered the quali-
fication of the persons to be taken. ||

[A by-law requiring the indentures of apprenticeship of such
as are bound apprentices to freemen to be enrolled within four
months from the date, in order to entitle them to their freedom,
seemeth to be good.]

pn an action for breach of a by-law restraining non-freemen
from exercising trades within the limits of a corporate city, the

court

court will compel tlie corporation to allow the defendant to s Barn. & C.
inspect the by-law in the corporation books. || ^^^•

TT seems clearly agreed, that wherever any trade by its ex- Ray^, ^gg

crescence tends to a nuisance, and thereby proves of public &c. 328. ad-
inconvenience, it may be restrained by a by-law ; therefore if the judged be-
mayor, Sfc. oi London, having time out of mind had the right to tween Player
order and dispose of cars, ^c, to the end the streets may not be 234. S. c! ad-
pestered with cars, <§r., make a by-law, that but 420, S^c. shall judged. Keb.
be permitted to work for hire within the city and the liberties 463. 496.
thereof, and that the president, 8^c. of Christ's Hospital shall have \^\^h SP
the regulation thereof; and that 205. admittance, and 17^. and adjudged be- "
4;d. yearly, shall be paid, Sfc. to the use of the poor of the said tween Player
hospital; this quoad the fine and rent is void (fl-), but in all things ^"^ Jenkins,
else a good by-law, because a multitude of cars, by the stoppage |^^ j^"'*
of the streets, may prove a public nuisance. Hke point
between Player and Broadnox admitted, such by-law being founded on the custom ; and vide
Skin. 571. pi. 19. to 384. 4 Mod. 228. A by-law to restrain the number of hackney-coaches,
and that they should not exceed 400, and objected that coaches being of a new invention, a
by-law founded on the custom was void; but there is no resolution; and now vide the statutes
5 W. & M. c. 22. 9 Ann. c. 23. 1 G. I. c. 57- 26 G. 5. c. 72. (a) A by-law that no carman
within the city of London should go with his cart without a licence from the guardians of such
an hospital, &c. is void, for this only tends to the private benefit of the guardians of the hos-
pital, and is in nature of a monopoly. Roll. Abr. 364. Vide Bulst. 11,12. And all by-laws

ought to be for the common benefit of, &c., and not for the private benefit of a particular man.
Goldsb. 79. Moor, 580. Garth. 480. Ld.Raym, 496. Salk. 142. pi. 1. 5 Mod. 438. 12 Mod.
270. 686. 2 Will. R. 209.

So if the number of taverns, alehouses, Sfc. increases to so Sid. 284./jer
great a number as to become nuisances, they may be restrained '^"''•
by a by-law.

So if a trade becomes a nuisance by its situation, it may be Skin. sso.

restrained by a by-law ; and therefore a by-law to restrain (*) Sid. 284.

butchers and chandlers (6), and such others (c) from setting up in 'PV^ ^"'''

Cheapside, or such other eminent parts of the city, is good, be- g p^'^fc^So of

cause such trades are offensive, and may be apt to create diseases , a brewhouse,

and therefore for fear of infection, and for the sake of public March, 15.

decorum and conveniencv, such kind of offensive trades may be P^^^^^' A ,

1.1 c ^- J. man restramed

removed to places of more retirement. from setting up

a tavern in Birchin-lane. March, 1 5.

So if a by-law be made in Lotidon, that none shall make a Roll. Abr. 365.

hotpress, nor use it within the city, under die penalty of 10/- for f^J'^'s^''*

the making thereof, and 5l. for the use thereof, this is a good by- brewers'^ drays

law ; because tlie use of those presses is dangerous with regard to should not be

fire, and also deceitful, inasmuch as they make cloth and stuflPs j" the streets

look better to the eye than in truth thev are. id) '" London

•' J \ ' sjftgr eleven m

the forenoon 'in summer, and one in winter, is good. Bosworth v. Hearne, H. 11 G. 2. Stra.
1085. Ca. temp. Hardw. 405. Andr.9K

(D) Such

810

BY-LAWS.

(D) Such as affect Strangers.

Bulst. ii.ad- TF the Corporation of Butchers in London^ having power to
J udged. bee make by-laws, make one, that no butcher, or person being a

135. (a) For stranger, shall sell any veal within the city of London, unless they
the general dress the kidneys of their veal in such a manner as the kidneys
learning where of sheep are dressed, under the penalty of, S^c. ; a stranger, selling
belbound^b^'^ veal in London (a), is not bound to take notice of this by-law.
by-laws or not, «irf<? Moor, 579. Dais. 103. Savil, 74. Godb. 180. Carter, 179. Salk. 142.
pi. 1. Ld. Raym.496.

Bulst. 12. j5er But if such by-law is made to suppress fraud, or any general

cur. [See ace. inconvenience used by a foreigner, as corruption, S^c. in the sale

Pierce V. liar- ^j- ^q^^ tl^jg jg q^ good by-law, and such of which he must

tram, Cowp. , • /j\ °

5269. Butchers' take notice. (6)

Company v. Morey, 1 H. Black. 370.] (A) That strangers coming into a corporation must,

at their peril, take notice of the by-laws of such corporation. Skin. 350. pi. 19. Lutw. 404.

Jones, 144.
Vide Bridg.
141. and
2 Vent. 33.

"Where the
University of

If the master, wardens, and assistants of the Trinity-house in

Deptford-strand, being incorporated by letters patent of Charles

the Second, and having thereby power to make by-laws, do make

one, that every mariner, within twenty-four hours after anchorage

in the river of Thames, shall send his gunpowder on shore, if the

Oxford made a ^yeather w^ill permit, under the penalty of, <^c., though quoad the

whoever pri- flatter, this is a good by-law, because for the public good, and

vilegiatus sive prevention of the danger which might otherwise accrue to the

nonprivilegi' city o^ London ; yet, because the by-law extended beyond the

fl/|«, should be jurisdiction of the makers, dubitatur.
taken walkmg *' '

in the streets after nine at night, and having no reasonable excuse to be allowed by the proctor,

should forfeit 405,, and whether this could affect or extend to a townsman, dubitatur ; and a

prohibition granted, to the end the merits may be determined. 1 H. Black. 375.

3 Mod. 159. If the Company of Horners of Lo?idon, being incorporated by

adjudged. letters patent, and empowered to make by-laws for the better

government of their corporation, make a by-law, that two men by
them appointed shall buy rough horns for the said company, and
bring them to the hall, there to be distributed every month by
the master, Sfc. for the use of the company; and that no mem-
ber of the company shall buy rough horns within twenty-four
miles of London, but only of those two men appointed, under
the penalty of, Sfc. this is no good by-law; for they being a
company incorporated in the city of Londo7i, have no juris-
diction elsewhere ; and may as well extend their power all over
Englatid, as for twenty-four miles.

A by-law that all strangers coming into the port of London
should employ city porters to carry their goods, ^c. is naught;
they may indeed make a by-law that none but freemen shall be
porters (c) : but to confine strangers to none but such as are
city porters, is unreasonable; for if the city will appoint no
porters, they have no remedy against the city : also strangers
a corporation, cannot know who are city porters, nor compel them to serve

but may a ira- . j tr ' r

them.

may
temity. See
10 Mod. 338., &c

(E) Such

( E) Such as in the Frame and Make of them are void, ^. 81 1

(E) Such as in the Frame and Make of them are void,
by ordaining a Method of enforcing Obedience to
them contrary to Law.

gY-LAWS are usually made with certain penalties, which sCo.m.

regularly are to be recovered by action of debt (a), or may («) Aby4«w
be levied by distress, (b) bjr the cky of

that the penalty shall be recovered by the chamberlain, u good. 5 Co. 63. Bat if tW

mayor and commonalty limit the penalty of the by-law to themselves, it cannot be recovered
in the mayor's court unless he be severed. Salk. 397. pi. 3. 398. Ld. Raym.50l. Whcfe,
upon a by-law made in London, the penalty was limited to be recovered by action of dclK,
wherein no essoin, protection, or wager of law should be allowed ; the justices laid th^ wcfv
very presumptuous in making by-laws in so legislative a strain, and said they might be sued in

B.R. for their presumption and insolence. Godb. 107. 3 Mod. 193. The action cannot

be restrained to the court of the corporation in which the by-law is made ; but debt, notwtth*
standing, will lie thereupon in the superior courts. 2 Sid. 105. 178. [A by-law, which dedaicd
that none but freemen should keep a shop, and confined the action to the Fortooote eoartt
where the sheriff or coroner (who must be freemen) arrayed the jur>', was adjti4|«d haiL

Hesketh v. Broddock, 3 Burr. 1847.] Where, under the penalty or such a sum (mC Cft>

ceeding 40«.), as by the makers of the by-law should be assessed. Brid. 159. Hfl. — RowtW
penalty must be ascertained. 2Lutw. 1324. (6) A penal sum to be forfeited (or n<MpcHbra»>
ance of a by-law, cannot be levied by distress, without a prescription, or exfnm UmAtiim hy
the by-law. 5 Co. 64. ||See 2 Maule & S. GO-H

But a by-law with a penalty of imprisonment (c), or for- 5 Co. 64.
feiture of goods and chattels, is void : for, by the general law of s Co. la?.
the kingdom, no man is to be imprisoned, or dispossessed of his ^ P- R»ol»ed.
goods and chattels, nisi per legale judicium parium suorum^ vet per ^^^ ^, |^
legem terrce ; and were by-laws with such penalties allowed, it s. P. (r) kmi
would be enabling corporations to set up private particular laws, liwrt the bjr.
in contradiction to the laws of the land ; which would be against )•* "^ •^
the very nature and essence of a by-law ; which, tliough it may |J^X5oL
be prceter the general law of the realm, it cannot be cotUra. words to iIm

mayor, he should be imprisoned, &c. Per cur. Such a by-law is not lawful ; ^^^yi^ *•
disfranchise the offender had been good. — The city of London cannot set a fine. ftc. wr ■«•>
performance of a by-law. Comb. 10.

If the Company of Tailors in the city of Exeter, being incor- «V«*:,'y-
porated by letters patent of Edward the Fourth, and having ,„JJJ5^
thereby power given them to make by-laws, make a by-law MdlWlHr.
under a certain penalty, to be levied by distress and sole of the (^^o^J-
offender's goods {d) ; this is no good by-law ; for the forfeiture JjJjJfJJJ "
cannot levied by sale of the offender's goods. pj, JC^

feiture of the goods, &c. 2 Inst. 47. 8 Co. 127 b. 2 Vent. 18S. 1 K<»Wh jUw^lMfce
corporation be created by act of parliament, if no such power be «P^7 GT-Zu ^
Nowill, 1 Term R. 118.] ||But a by-law that members of a company ^TZJSmT^S^
them in a certain time after notice, or otherwise forfeit thetr »hare<, W |0oa. ■—
not relieve against a forfeiture incurred by neglect. Jsparks ». umpoM
Company, 13 Ves. 428.11 g,

II And a by-law made by die freemen of the Coropwiir «
Free Fishers and Dredgers of IVhitslabU-, prohibiung any fre*- ^rSULk^
men from being engaged in die trade of senduig «y»tcr. to ^ TW ^ _
market from any other ground on the AV/.//^ shore than Ube Cam^t.%,
oyster ground of the company, under a |KMmUy ol »W-j^
in case of refusal to pay the same, that such '^f^^JJ^^^j^J!,

812

BY-LAWS.

company to
restore the
plaintiff liis
office of free-
man. 7 East,
553. ; and see
17 Ves. 315.
1 Meriv. 107.
S.C.

Moor, 411.

Totterdell v.
Glasby,
2 Wils. 266.
1 Wils. 237.
5 Co. 62 b.

Rex V. Dean
of Dublin,
1 Stra. 536.

Master, &c. of
Tobacco Pipe-
makers' Com-
pany V

thenceforth, and until the fine was paid, be excluded from
all share of the profits to be made thereafter by the joint trade
of the company, was held to be a void by-law, there being no
usage stated to that extent, but only an usage for the freemen to
make orders for regulating the company and fishery, with fines
and penalties for breach of such orders, and for prohibiting
freemen from being engaged in other oyster grounds, under
penalties to be stopped out of the money arising by the sale of
the stint of oysters of such freemen.. Lord Ellenboivugh C. J.
said, " A by-law giving a remedy by distress for the recovery
of the penalty would be bad. And is not this worse ? The
company are not content with levying the fine, but they with-
hold all share of the profits till the fine is paid." — Qii. Whether
the by-law would have been good if it had not contained these
extraordinary means of compelling payment of the penalty.
According to 8 Term R. 352. it seems that it would ; but that
what may well be the subject of contract in a partnership may
not be good as a by-law of a corporation, see 17 Ves. 323. ||

If in Lofidon a by-law is made, that if any freeman takes
the son of an alien to be his apprentice the bonds and cove-
nants shall be void, this is no good by-law ; for though the
common-council might have inflicted a fine or other punishment
upon such master, yet they cannot make the bonds and cove-
nants void.

[Although a by-law, in exclusion of foreigners from the ex-
ercise of a trade, may be good with a precedent custom to sup-
port it, yet it is void if the penalty is made recoverable by a
stranger, not a member of the corporation : it must be made
recoverable by the corporation, or some person for their use, as,
in London, by the chamberlain^ else it would be like assigning a
chose in action.

Under a power by charter to make by-laws, a corporation
cannot make a law requiring their members to take an oath for
the due observance of their statutes and ordinances, or to autho-
rize themselves to administer an oath.]

II A by-law imposing a fine on every master, warden, or
assistant of a company who shall not attend all courts Xo be
holden, is valid. ||

WoodroiFe, 7 Barn. & C. 838.

END OF THE FIRST VOLUME.

Printed by A. Strahan, Law- Printer to His Majesty,
Printers-Street, London.

ADDENDUM.

BANKRUPT.

T> Y 1 & 2 Will. 4>. c. 56. it is enacted, « That it shall be law- i & 2 \V. 4.

• " ful for his majesty, his heirs and successors, by charter or ^- ^^*
" letters patent under the great seal of the United Kingdom of
" Great Britain and Ireland, to erect and establish a court of ju-
" dicature which shall be called ' The Court of Bankruptcy,*
" and by commission under the great seal to appoint one person,
" being a serjeant or a barrister at law of not less than ten years'
" standing, to be the chief judge of the said court, and three per-
" sons, being serjeants or barristers at law of not less than ten
" years' standing at the bar, or of five years' standing at the bar,
" having previously practised five years as a special pleader below
" the bar, to be other judges of the said court, and six persons, being
" barristers at law of not less than seven years' standing at the bar,
" or of four years' standing at the bar, having previously practised
" as a special pleader for three years below the bar, to be called
" commissioners of the said court, and from time to time to
" supply any vacancy in the number of the said judges and
" commissioners ; and the same court shall be and constitute a
*' court of law and equity, and shall, together with every judge
*' and commissioner thereof, have, use, and exercise all the
" rights, incidents, and privileges of a court of record or judge
" of a court of record, and all other rights, incidents, and pri-
*' vileges, as fully to all intents and purposes as the same are
*' used, exercised, and enjoyed by any of his majesty's courts of
*' law or judges at Westminster"

By § 2. it is enacted, " That the said judges, or any three of J 2.
" them, shall and may form a Court of Review, which shall
** always sit in public, save and except as may be otherwise
*' directed by this act, or by the rules and regulations to be
** made in pursuance hereof^ and shall have superintendence
" and controul in all matters of bankruptcy, and shall also have
" power, jurisdiction, and authority to hear and determine,
*' order and allow all such matters in bankruptcy as now usually
*' are or lawfully may be brought by petition or otherwise
♦' before the Lord Chancellor, whether such matters may have
" arisen in the said Court of Bankruptcy or elsewhere, except
Vol. I. 3 G " as

811 ADDENDUM.

" as is herein otherwise provided, and also to investigate and
" examine, hear and determine all such other matter^i within
*' the jurisdiction of the said Court of Bankruptcy as are by
" this act, or may be by the said rules and regulations, assigned
*' and referred to the said Court of Review.

§ ^* " § 3. And be it enacted, that all such matters to be heard and

" determined in the said Court of Review, shall be brought on
*' by way of petition, motion, or special case, according to the
*' rules and regulations to be established as hereinafter provided,
-** subject to an appeal to the Lord Chancellor on matters of
■*' law and equity, or on the refusal or admission of evidence
*• only ; and in all cases of appeal to the Lord Chancellor by
^' virtue of this act, such appeal shall be on a special case, and
" in no other mode whatsoever, except the Lord Chancellor
*' shall in any case otherwise direct ; which special case shall be
** approved and certified by one of the judges of the said Ccurt
*' of Review in matters arising in the said court, and by the
*' j"dg6 trying the issue in matters arising out of the trial of
^* issues ; and the determination of such judge on the settlement
*' of such €ase shall be final and conclusive : provided always,
■*' that all appeals to the Lord Chancellor by virtue of this act
■•* shall be heard by the Lord Chancellor only, and not by any
" other judge of the High Court of Chancery."

C 4. ^y § '^' it is enacted, " That it shall be lawful for the said

** Court of Review to direct any issue of fact arising therein to
" be tried by a jury before one of the judges thereof, or before
** a judge of assize, and to issue process to compel the attend-
** ance of jurors and witnesses, and to enforce the orders and
** decrees of the said Court of Review, and to that end to exer-
*' cise all the powers vested for such purposes in any of his ma-
*' jesty's courts of record at Westminster.

^3. " § 5. And be it enacted, that all costs of suit between party

** and party in the said Court of Review shall be in the discre-
*' tion of the Court, and shall be taxed by one of the masters of
** the High Court of Chancery.

j 6. *' § 6. And be it enacted, that the said six commissioners may

** be formed into two subdivision courts, consisting of three
** commissioners for each court, for hearing and determining the
*' matters and things, and making the examinations hereinafter
*' referred thereto ; and all references or adjournments by a sin-
** gle commissioner to a subdivision court by virtue of this act,
** shall be to the subdivision court to which he belongs, unless
" the said commissioner, in case of the sickness of some one or
*' more of the commissioners of such subdivision court, or other
^* sufficient cause, shall think fit otherwise to direct, and the
^* subdivision courts may sit either in public or private as they
" shall see fit, unless where it shall be otherwise provided by
** this act, or by the rules to be made as hereinafter mentioned."
§ 7. By § 7. it is enacted, " That in every bankruptcy prosecuted in

** the said Court of Bankruptcy, it shall and may he lawful for
*^ any one or more of the said six commissioners to have, per-
^ " form,

BANKRUPT. 815

*' form, and execute all the powers, duties, and authorities by
" any act or acts of parliament now in force vested in commis-
" sioners of bankrupt, in all respects as if they or any one or
*' more of them were in every instance specially authorized and
" appointed for the purpose by a separate commission under the
** great seal of the United Kingdom of Great Britain and Ire-
*' Land : provided always, that no single commissioner shall have
" power to commit any bankrupt or other person examined be-
*' fore him, otherwise than to the care and custody of a messen-
" ger or other officer of the said court, to be by him detained in
" his custody, and brought up before a subdivision court, or the
" Court of Review, within three days after such commitment,
" for which purpose one of such courts shall be forthwith
" assembled, and to which court such examination shall be
*' adjourned."

§ 9. regulates the appointment of registrars and deputy ^ 9.

registrars.

By § 10. attorneys and solicitors of the superior courts at § 10.
Westminster may be admitted in the Court of Bankruptcy, and
may appear and plead without counsel in any proceedings (ex-
cept proceedings before the Court of Review, and trials of issues
by juries).

By § 12. it is enacted, " That in every case where the Lord § la,
" Chancellor, by virtue of any former act, hath power to issue a
" commission of bankrupt under the great seal, it shall and may
" be lawful for him, and also for the Master of the Rolls, the
" Vice- Chancellor, and each of the masters of the Court of
" Chancery acting under any appointment by the Lord Chan-
" cellor to be given for that purpose, on petition made to the
*' Lord Chancellor against any trader having committed any act
" of bankruptcy by any creditor of such trader, and upon his
" filing such affidavit, and giving such bond as is by law re-
" quired, to issue his fiat under his hand in lieu of such com-
" mission, thereby authorizing such creditor to prosecute his
" said complaint in the said Court of Bankruptcy, or to prose-
" cute the same elsewhere before such discreet and proper per-
" sons as the Lord Chancellor, or as the Master of the Rolls,
" Vice-Chancellor, or one of the Masters of the Court of Chan-
" eery, acting as aforesaid by such fiat, may think fit to nominate
" and appoint ; and that the persons so appointed shall thereby
" have the like power and authority to all intents and purposes
" as if they were assigned and appointed special commissioners
" by virtue of a commission under the great seal.

" § 13. And be it enacted, that every such fiat, prosecuted in j 13^
" the said Court of Bankruptcy, shall be filed and entered of
" record in the said court, and shall thenceforth be a record of
" the said court, and it shall thereupon be lawful for any one
" or more of the commissioners thereof, to proceed thereon in
" all respects as commissioners acting in the execution of a
" commission of bankrupt, save and except as such proceedings
" may be altered by virtue of this act.

3 G 2 " ^ II. And

SI 6 ADDENDUM.

§ 14- " § 14. And be it enacted, that the Judges who go the several

" circuits in England and IVales^ may be directed by the Lord
" Chancellor from time to time to return to him the names of
" such number of barristers, solicitors, and attorneys practising
" in the counties to the said circuits belonging, and upon such
" persons being returned, and approved by the Lord Chancellor,
*' the fiat or fiats aforesaid, not directed to the Court of
" Bankruptcy, shall be directed to some one or more of such
" persons in rotation, to act as commissioners of bankrupt,
" according to the districts or places for which such persons^
" shall be so returned, and to no other persons than such as"
*' shall be included in such return : provided always, that it shall
" be lawful for the Lord Chancellor, at any time, to remove any
*' person from the lists so to be returned, for such causes as to
" him shall seem fit.

$ 16. " § 16. And be it enacted, that all the laws and statutes, rules

" and orders, now in force relating to bankrupts, or to com-
" missioners of bankrupt, or to proceedings under such com-
" missions, or to the subject matter of such proceedings, or to
" the persons concerned therein or in any way affected thereby,
" shall in like manner extend and be construed to extend in
" every respect, as far as the same may be applicable, to this
*' act, and to fiats issued in pursuance thereof, and to all pro-
" ceedings under the same, and to all the subject matter of
" such proceedings, and to all persons concerned therein or in
*' any way affected thereby, to all intents and purposes what-
*' soever, as if every such fiat were a commission of bankrupt
" under the great seal of the United Kingdom of Great Britai7i
" and Ireland, save and except as may be otherwise directed by
" this act.

$ 17. " § 17. And be it enacted, that if any trader adjudged

" bankrupt shall be minded to dispute such adjudication, and
*' shall present a petition praying the reversal thereof to the
*' said Court of Review, such petition to be presented within two
*' calendar months from the date of such adjudication, if such
*' trader shall be then residing within the United Kingdom, or
*' within three calendar months from the date aforesaid if then
" residing in any part of Europe, or within one year from the
" date aforesaid if then residing elsewhere, or within such other
" time as the said court shall allow, (not exceedmg one year, to
" be computed from the date aforesaid,) such Court of Review
*' shall proceed to hear and decide on the said petition ; or at
" the option of the said bankrupt, and on his finding such
*' security for costs (if the said court shall think fit to require
*' any security) as by the said court shall be approved, shall
*' direct an issue to try any matter of fact affecting the validity
" of such adjudication, by a jury to be duly impannelled and
" sworn for that purpose, before the chief judge, or any one or
" more of the other judges of the Court of Bankruptcy ; and if
*' the verdict on such issue shall not be set aside on application
" to the said Court of Review, within one month after the said

« trial,

BANKRUPT. 817

•* trial, or if the adjudication of the commissioner shall not be set
** aside by the said Court of Review on the petition aforesaid, such
" verdict or such adjudication of the said commissioner, shall
*' in all cases, as against the said bankrupt, and also as against
** the petitioning creditor, and as against any assignee to be
*' chosen of any such bankrupt's estate and effects, and as
*< against all persons claiming under the said assignees, and all
** persons indebted to the bankrupt's estate, be conclusive
*' evidence that the party was or was not a bankrupt at the date
" of such adjudication, any other act, debt, or trading, than the
•' act, debt or trading proved at such trial notwithstanding :
** providing always, that an appeal shall be to the Lord Chan-
*' eel lor from the decision of the said Court of Review, upon
** matter of law or equity, or on the refusal or admission of
*' evidence only.

" § 18. Provided always, and be it further enacted, that after ^ is.

" any such issue shall have been tried as aforesaid, it shall and
" may be lawful for the Lord Chancellor, on petition to him, to
*' be presented within one calendar month after such verdict,
" and upon notice thereof to the bankrupt upon special circum-
** stances, to be submitted to the said Lord Chancellor, to order
*' that another fiat do issue at the instance of any other than the
*' former petitioning creditor against the said bankrupt, and that
*' such fiat shall and may be supported by any debt, trading, or
*' act of bankruptcy, other than those given in evidence on the
*' trial of such issue.

" § 19. And be it enacted, that it shall be lawful for the Lord § 19.

" Chancellor, upon the reversal of any adjudication of bank-
** ruptcy, or for such other cause as he shall think fit, to order
" that any fiat issued by virtue of this act, shall be rescinded or
" annulled ; and such order shall have all the force and effect of
*' a writ of supersedeas of a commission, according to the existing
*' laws and practice in bankruptcy.

" §22. And be it enacted, that a number of persons, not ^ 22.

** exceeding thirty, being merchants, brokers, or accountants, or
*' persons who are or have been engaged in trade in the cities of
*' Liondon or Westininster^ or the parts adjacent, shall be chosen
** by the Lord Chancellor to act as official assignees in all bank-
*' ruptcies prosecuted in the said Court of Bankruptcy ; one of
" which said official assignees shall, in all cases, be an assignee
** of each bankrupt's estate and effects, together with the as-
" signee or assignees to be chosen by the creditors ; such official
*• assignee to give such security, to be subject to such rules, to
" be selected for such estate, and to act in such manner as the
" said chief and other judges, with the consent of the Lord
*' Chancellor, shall from time to time direct : and all the personal
*' estate and effects, and the rents and profits of the real estate,
*' and the proceeds of sale of all the estate and effects, real and
" personal, of the bankrupt, shall, in every case, be possessed
<• jind received by such official assignee alone, save where it
shall be otherwise directed by the said Court of Bankruptcy,

*' or - ,

((

818 ADDENDUM.

" or any judge or commissioner thereof; and all stock in the
** publiQ funds, or of any public company, and all monies,
" exchequer bills, India bonds, or other public securities, and
*' all bills, notes, and other negotiable instruments, shall be
" forthwith transferred, delivered, and paid by such official
" assignee into the Bank o^ England, to the credit of the ac-
" countant-general of the High Court of Chancery, to be subject
** to such order, rule, and regulation for the keeping of the j,
** account of the said monies and other effects, and for the pay-} ij
" ment and delivery in, investment, and payment, and delivery*
" out of the same, as the Lord Chancellor, or the said Court of
" Review, or any judge of the said Court of Bankruptcy, if
** authorized so to do by any general order of the same court,
*' shall direct : and if any such assignee shall neglect to make
" such transfer, delivery, or payment, every such assignee shall
" be liable to be charged in the same manner as by the said
*' redted act is provided, in cases of neglect by assignees to
" invest money in the purchase of exchequer bills, when directed
" so to do: provided always, that until assignees shall be chosen
^^ by the creditors of each bankrupt, such official assignee so to
"be appointed to act with the assignees so to be chosen by the
*' creditors, shall be enabled to act, and shall be deemed to be,
" to all intents and purposes whatsoever, a sole assignee of each
" bankrupt's estate and effects.

K 25 " § 23. Provided always, and be it enacted, that nothing

" herein contained shall extend to authorize any such official
" assignee to interfere with the assignees chosen by the cre-
" ditors in the appointment or removal of a solicitor or attorney,
" or directing the time and manner of effecting any sale of the
" bankrupt's estates and effects.

§ 24. " $ 24. And be it enacted, that it shall be lawful for the Lord

" Chancellor, from time to time as any vacancy may occur in
" the said before- mentioned number of official assignees, to
" appoint some other such person as aforesaid to fill any vacancy
" so occurring; and in case of the death or removal of any official
" assignee who shall have been appointed to act in any bank-
*' ruptcy, it shall be lawful for the said Court of Bankruptcy,
*' subject to any rules to be made by virtue of this act, to
" appoint another official assignee, of the number hereby pre-
" scribed, to act in the same bankruptcy, in the place of the
" assignee who shall have so become dead or been removed.

§ 25. " $ 25. And be it enacted, that when any person hath been

" adjudged a bankrupt, all his personal estate and effects, pre-
" sent and future, which by the laws now in force may be as-
" signed by commissioners acting in the execution of a com-
" mission against such bankrupt, shall become absolutely vested
'' in and transferred to the assignees or assignee for the time
*' being, by virtue of their appointment, without any deed of
*« assignment for that purpose, as fully to all intents and pur-
" poses as if such estate and effects were assigned by deed to
** such assignees, and the survivor of them ; and as often as any

" suck

BANKRUPT. ' 819

" such assignees shall die or be lawfully removed, and a new
" assignee duly appointed, all such personal estate as was then
" vested in such deceased or removed assignee shall, Ijy virtue
" of such appointment, vest in the new assignee, either alone
" or jointly with the existing assignees as the case may require,
" without any deed of assignment for that purpose.

" § 26. And be it enacted, that jvhere any person shall be § 26.
" adjudged a bankrupt, all such present and future real estate
" of such bankrupt, whether in the United Kingdom of Great
" Britain and Irela?id, or in any of the dominions, plantations,
" or colonies belonging to his majesty, as by the said recited
" act is directed to be conveyed by the commissioners to. the
" assignees, shall vest in such bankrupt's assignee or assignees
" for the time being, by virtue of his or their appointment,
" without any deed of conveyance for. that purpose; and as
" often as any such assignee or assignees shall die, or b,e law-
" fully removed or displaced, and a new assignee or assignees.
" shall be duly appointed, such of the aforesaid real estate as
" shall remain unsold or unconveyedj shall by virtue of such
" appointment vest in the new assignee or assignees, either alone
** or jointly with the existing assignees, as the case may. require, '
" without any conveyance for that purpose."

(For further provisioris see the act.)

END OF THE FIRST VOLUME.

Printed by A. Strahan, Law- Printer to His Majesty,
Printers- Street, London.

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